Secured Creditors in Italy 2026: Enforcement, Stays and Remedies Under the EU Insolvency Framework

Secured creditors in Italy face a reshaped enforcement landscape, shaped both by Italy’s own Code of Business Crisis and Insolvency (Codice della crisi d’impresa e dell’insolvenza, Legislative Decree No. 14 of 2019, as subsequently amended) and by the ongoing EU harmonisation of restructuring and insolvency law. For banks, in-house counsel and restructuring lawyers, the practical question is no longer whether the framework is evolving, it is how enforcement timing, judicial stays and priority protection operate under the current Italian rules and how they may be affected by further EU measures.

This guide maps the EU framework to Italian procedural law and translates it into a concrete playbook: what to do before a debtor files, how to enforce during a stay, and when to fight versus negotiate. EU harmonisation raises the floor of creditor protection across the Union, but the tactical detail, and the decisive advantage, lies in the Italian Code and how local courts apply it.

Last updated: 2026. This article is for information and does not constitute legal advice; secured creditors should seek local counsel before acting.

Quick summary: the EU insolvency framework and secured creditors in Italy

EU restructuring and insolvency law, notably Directive (EU) 2019/1023 on preventive restructuring frameworks (the “Restructuring Directive”), which Italy has transposed through amendments to its Code of Business Crisis and Insolvency, is designed to reduce fragmentation between national regimes and to give creditors, including secured lenders, a more predictable set of protections when a debtor enters a moratorium, restructuring or liquidation. For secured creditors in Italy, the significance is that Italy’s historically procedure-specific approach to stays and enforcement has been reconciled with harmonised EU minimums. EU law does not abolish national insolvency law; it constrains and standardises it. The EU has also announced work on further harmonisation of substantive insolvency law, which lenders should continue to monitor.

The features that matter most to lenders are:

• Clearer rules on stays (moratoria). Italian law and the EU framework set out when a stay on enforcement applies, its duration, and the circumstances in which it can be extended or lifted, reducing the open-ended uncertainty that previously varied between concordato preventivo (preventive composition) and liquidazione giudiziale (judicial liquidation).
• Minimum protection measures for affected creditors. Where a stay interferes with a secured creditor’s ability to enforce, protections and safeguards apply, a concept Italian courts apply within the Code framework.
• Preservation of in-rem remedies subject to safeguards. Stays are limited in scope, and certain enforcement rights over specific collateral may be preserved, giving lenders a footing to continue enforcement in defined cases.
• Cross-border recognition. The recognition of insolvency effects and creditor remedies across Member States is governed principally by Regulation (EU) 2015/848 on insolvency proceedings, which matters where collateral or the debtor’s centre of main interests spans borders.
• Avoidance actions. Italian law sets out the transactions that can be clawed back, with carve-outs that inform how secured creditors document and time their security.

The critical caveat: EU directives operate through national transposition. In Italy, the operative source is the Code of Business Crisis and Insolvency and the Civil Code, together with any subsequent implementing legislation. The correct compliance posture for secured creditors in Italy is to prepare enforcement playbooks against the current Italian rules and to monitor further legislative developments published in the Gazzetta Ufficiale.

Comparison: enforcement and stays under Italian insolvency procedures

The table below sets out, issue by issue, how Italian practice operates across the main procedures. It is the operational centrepiece of this guide, read each row as a prompt to update your enforcement checklist.

Decision framework: enforce, engage, or hybrid

Do not treat every default the same way. The right response depends on the nature of the collateral and the debtor’s prospects. Take a clear position early:

• Choose A, enforce or seek to proceed with enforcement, when: the collateral is discrete and separable; enforcement costs are low; seizure will not destroy going-concern value; and you can obtain possession quickly where local rules permit in-rem enforcement despite a pending insolvency filing.
• Choose B, engage with the insolvency or restructuring and negotiate protection, when: the collateral is integral to the ongoing business or saleable only as a going concern; enforcement risks destroying value; or the applicable rules give secured creditors rights to influence the restructuring, such as a separate class vote or protection measures.
• Choose C, a hybrid approach, when: partial enforcement over non-essential assets preserves your security while you participate in the restructuring for the balance of the exposure.

The lesson is not that speed always wins, it is that the strategy must match the collateral. A lender enforcing quickly on discrete, off-site machinery may recover a substantially higher proportion of its exposure than an unsecured creditor, whereas a lender that funds new financing to preserve a viable business may secure priority treatment in a court-approved plan and a higher ultimate recovery. Match the tactic to the asset.

Types of security and ranking in Italian insolvency

Secured creditor rights in Italy turn on the type of security, how it was perfected, and where it ranks. Enforcement rights differ materially between a mortgage, a pledge, a fiduciary transfer, retention of title and set-off. Understanding these differences is the foundation of any enforcement strategy.

Mortgages (ipoteca)

A mortgage over real property is registered at the land registry (Conservatoria dei Registri Immobiliari, now part of the Agenzia delle Entrate’s real-estate services), and priority runs from the date of registration. In insolvency, mortgagees enjoy strong preferential status over the proceeds of the mortgaged asset, but enforcement is typically channelled through a forced sale coordinated with the insolvency estate rather than a free-standing foreclosure. The principal vulnerabilities are ranking disputes with earlier-registered creditors and the risk of subrogation. Practical tip: verify registration currency and confirm there are no prior inscriptions before assuming first-rank status.

Pledges (pegno)

A pledge can be possessory, where the creditor or a third party holds the pledged asset, or non-possessory under specific statutory regimes (including the non-possessory pledge introduced for business assets). Perfection generally requires either transfer of possession or registration for the non-possessory form. Possessory pledges are the most robust in insolvency because possession itself evidences and protects the security; non-possessory pledges depend on correct registration. In judicial liquidation, a validly perfected pledge gives the secured creditor priority over the pledged asset’s proceeds, and possessory pledges can often be enforced with less friction than mortgages.

Fiduciary transfers (trasferimento fiduciario)

Fiduciary or trust-like transfers, where title passes for security purposes, sit in a more contested area. Their effectiveness against the insolvency estate depends on characterisation and timing, and they carry priority and recharacterisation risk. A transfer that a court views as a disguised security may be treated differently from an outright transfer, and it may be exposed to avoidance actions. Secured creditors relying on fiduciary structures should document the commercial rationale and the transfer date carefully.

Retention of title (riserva di proprietà)

Retention of title allows a seller to retain ownership of goods until full payment. Its scope is narrow: it protects the specific goods sold, and it is vulnerable where the goods have been resold, commingled or transformed. To be effective against the estate, the clause generally requires a date certain (data certa) predating the procedure. In insolvency, a retention-of-title claim is only as good as the traceability of the goods and the enforceability of the clause against the estate. It is a useful supplement to, but not a substitute for, registered security.

Set-off and bank rights

Set-off can be a powerful remedy where a bank holds both a claim against and an obligation to the debtor, for example, deposits held against a loan. The mechanics and permissibility of set-off in insolvency depend on when the mutual claims arose and on the applicable statutory limits under the Civil Code and the Code of Business Crisis and Insolvency. Where available, set-off can effectively convert an unsecured exposure into a recovery without the need for enforcement proceedings, which is why lenders should map set-off opportunities the moment distress appears.

Enforcement of security in Italy during open insolvency procedures

The single most important question secured creditors in Italy ask is whether they can enforce collateral once a procedure has opened. The answer depends on the procedure, the type of collateral and the applicable stay. The sections below set out the position for each of the main Italian procedures and the steps to preserve and pursue enforcement.

Judicial liquidation (liquidazione giudiziale)

Judicial liquidation, which replaced the historic fallimento under the Code of Business Crisis and Insolvency, is a collective procedure administered by a court-appointed curatore (trustee/administrator). On opening, individual enforcement actions are generally suspended and channelled into the collective process. Secured creditors do not lose their priority, but they must assert it: file a proof of claim (domanda di ammissione al passivo) identifying the security, its perfection date and its ranking, and monitor the sale of the encumbered assets. Realisation is typically achieved through the estate’s sale process, with the secured creditor’s preference attaching to the proceeds of its collateral.

The tactical priority is to ensure your security is correctly recorded and recognised, and to engage with the curatore early on the timing and method of realisation.

Concordato preventivo (preventive composition)

The concordato preventivo is a debtor-led restructuring in which creditors vote on a plan. Secured creditors are generally entitled to be satisfied up to the value of their collateral (as determined by an independent expert’s estimate) and to be treated in a dedicated class, which gives them leverage over plan terms. Where the plan proposes to impair secured claims, the value of the collateral becomes the battleground, and cross-class cram-down mechanics may apply across dissenting classes subject to statutory safeguards, including the “best-interest-of-creditors” test, a secured creditor cannot be left worse off than in a liquidation. Secured creditors should value collateral independently, vote strategically within their class, and negotiate protection where the plan contemplates continued use of the encumbered assets.

Negotiated restructuring and composition procedures

Italy’s crisis-management framework also includes negotiated tools, including the negotiated crisis settlement (composizione negoziata della crisi), debt-restructuring agreements (accordi di ristrutturazione dei debiti) and restructuring plans subject to court approval (piani di ristrutturazione soggetti a omologazione), that operate partly outside full judicial control, often with the aim of rescuing a viable business. These can allow greater room to enforce outside a formal collective procedure, or to agree standstills in exchange for enhanced protections. New financing (including interim and priority financing) is a key feature: a secured creditor that provides new money to preserve the business may secure priority treatment in a court-approved plan.

The strategic calculation here is whether supporting a rescue delivers a higher recovery than immediate enforcement, frequently it does where the collateral is only realisable as part of a going concern.

Cross-border proceedings

Where the debtor or its assets straddle borders, Regulation (EU) 2015/848 on insolvency proceedings governs jurisdiction, applicable law and the recognition of proceedings across Member States. For secured creditors in Italy with collateral abroad, the practical consequence is that main and secondary proceedings and the treatment of rights in rem must be assessed against the Regulation’s provisions, including the protection the Regulation affords to rights in rem over assets situated in another Member State. Do not assume Italian recognition of foreign steps is automatic, verify the recognition pathway and coordinate enforcement across jurisdictions.

Practical pre-insolvency checklist for secured creditors

The best enforcement outcomes are secured long before a debtor files. The following seven-step action plan should be run the moment credit deterioration is detected, and reviewed periodically for all significant exposures.

1. Perfect the security (immediately). Confirm that every mortgage, pledge and non-possessory security is validly perfected, registered at the correct registry, with possession taken where required. Unperfected security is the most common and most avoidable loss.
2. Register and refresh notices (within days). Ensure inscriptions have not lapsed and that renewals are diarised. For cross-border collateral, update foreign registries in parallel.
3. Monitor debtor filings (continuously). Set up alerts for insolvency and restructuring filings so you learn of a moratorium promptly, not weeks later.
4. Take possession of possessory collateral (where lawful). Where the security depends on or is strengthened by possession, secure the asset before a stay attaches.
5. Preserve evidence. Assemble the complete document chain, facility agreement, security document, registration records, valuation and origination dates, to defend priority and rebut avoidance claims.
6. Confirm insurance and maintenance. Ensure collateral is insured, maintained and not deteriorating; a falling asset value erodes recovery regardless of ranking.
7. Escrow and centralise documentation. Keep original security documents secure and readily retrievable so proofs of claim and enforcement steps can be filed without delay.

Sample notice of preserved security (template): “We hold registered security over [asset] under [security document dated __], perfected on [date]. We assert our priority and reserve all enforcement rights. Please treat this claim as secured in any proceeding.”

Tactical options during a stay: lift, protection and enforcement outside the procedure

When a stay blocks enforcement, secured creditors in Italy are not without remedies.

• Requesting a lift or modification of the stay. The grounds typically turn on whether the stay is causing disproportionate harm to the secured creditor, whether the collateral is depreciating, and whether the stay serves a legitimate rescue purpose. Present clear evidence of value erosion and lack of adequate safeguards, and push for a prompt hearing.
• Offering or demanding protection. Where a debtor wishes to keep using encumbered assets, the secured creditor can seek compensation for depreciation, replacement collateral, escrowed proceeds, or periodic payments. Drafting tip: quantify the protection precisely, a specified monthly payment or a defined substitution asset is far more enforceable than a general assurance.
• Enforcing outside the procedure. Where in-rem remedies are preserved or the collateral falls outside the stay’s scope, including assets located abroad, enforcement may proceed. Assess the risk profile carefully: enforcement that undermines a viable rescue can attract judicial scrutiny.

Timing is decisive. File the lift motion or protection request early, before value has eroded and before the plan process has hardened around an assumption of continued use of your collateral.

Remedies, clawbacks and avoidance actions: what secured creditors must watch for

Even a perfectly perfected security can be attacked if it was created or improved within the look-back period preceding insolvency. Italian avoidance rules, the azione revocatoria in its insolvency form and related provisions of the Code of Business Crisis and Insolvency, allow the estate to unwind preferences and transactions that unfairly prejudiced other creditors. The relevant look-back periods and conditions are set by the Code and depend on the transaction type. Carve-outs protect certain ordinary-course and contemporaneous exchanges, as well as protected restructuring finance.

To minimise clawback exposure:

• Document origination dates precisely. Security taken contemporaneously with new value is far more defensible than security taken to shore up an existing unsecured exposure during distress.
• Preserve the full document chain. A clean record of when the facility was advanced, when the security was granted and when it was perfected is your primary defence.
• Identify safe-harbour transactions. Ordinary-course payments, contemporaneous exchanges and certain financing arrangements may fall within carve-outs; know which of your positions qualify.
• Avoid last-minute perfection. Perfecting security shortly before a filing is the classic trigger for avoidance, perfect early as part of the pre-insolvency checklist above.

Practical timeline and what to file

Speed is a recurring theme. The following indicative 6–12 week tactical timeline sets out the typical creditor response once an insolvency notice is received; actual statutory deadlines are set by the court and the Code, so confirm them for the specific procedure:

• Week 1: Confirm the procedure and stay scope; issue a notice of preserved security; secure originals and evidence.
• Weeks 1–2: Prepare the proof of claim asserting secured status, ranking and perfection date, and file it within the deadline fixed by the court; open a line of communication with the curatore or debtor.
• Weeks 2–4: If enforcement is blocked and the collateral is depreciating, file a motion to lift or modify the stay and/or a request for protective measures.
• Weeks 4–8: Value collateral independently; position within the relevant class; negotiate plan terms or realisation timing.
• Weeks 8–12: Pursue enforcement or plan participation per the chosen strategy; review cross-border registrations and recognition steps.

Conclusion and next steps

For secured creditors in Italy, this is a period to update, not merely observe. The Code of Business Crisis and Insolvency, aligned with EU harmonisation, raises the baseline of protection and imposes clearer discipline on stays, remedies and cross-border recognition, but the decisive advantage still comes from doing the basics early: perfecting security, preserving the document chain, monitoring debtor filings, and choosing between enforcement and engagement based on the collateral rather than reflex. Take a position quickly, file promptly, and keep your playbook current as the framework evolves. Secured creditors that treat this as a live compliance project, rather than a policy footnote, will be the ones recovering closer to full value.

If you need help in Italy, contact our insolvency lawyers in Italy.

This article is for information and does not constitute legal advice. Secured creditors should seek local counsel before taking enforcement or restructuring decisions.

Sources

1. Normattiva, Codice della crisi d’impresa e dell’insolvenza (Legislative Decree No. 14/2019), Codice Civile and Codice di Procedura Civile
2. EUR-Lex, Directive (EU) 2019/1023 (preventive restructuring frameworks)
3. EUR-Lex, Regulation (EU) 2015/848 on insolvency proceedings
4. Gazzetta Ufficiale della Repubblica Italiana
5. Italian Ministry of Justice
6. Corte Suprema di Cassazione
7. Consiglio Nazionale Forense, Italian Bar Council
8. European Commission, insolvency policy