Extended Confiscation and Protection of the Third-Party Assignee: Clarifications from the Supreme Court of Cassation with Judgment No. 30611/2025

The Italian legal landscape, constantly engaged in the fight against economic and organized crime, is enriched by an important ruling from the Supreme Court of Cassation. With judgment No. 30611, filed on September 12, 2025, the judges of legitimacy have provided fundamental clarifications on extended confiscation and, in particular, on the protection of the third-party assignee of a mortgage credit when the collateral asset has been subject to preventive seizure. A decision of great significance for banks, financial institutions, and all operators in the sector, as demonstrated by the case involving G. B. S.p.A.

Extended Confiscation: A Crucial Tool Against Crime

Extended confiscation, provided for by Article 240-bis of the Criminal Code (formerly Article 12-sexies of Law Decree No. 306/1992, later incorporated into the Anti-Mafia Code, Legislative Decree No. 159/2011), represents one of the most incisive tools available to the State to seize assets of illicit origin. It allows for the confiscation of assets whose lawful origin the convicted person cannot justify, provided their value is disproportionate to their declared income or economic activity, and there is a reasonable presumption that they are the proceeds of illicit activities. It is a measure aimed at depriving criminals of the fruits of their activities by directly impacting their economic capacity.

Assignment of Credit and Seizure: A Conflict of Interest

The case examined by the Supreme Court of Cassation in judgment No. 30611/2025 concerns a complex and frequent situation in practice: the assignment of a mortgage credit at a time subsequent to the seizure of the asset serving as collateral. In such circumstances, a potential conflict arises between the State's interest in confiscating the asset (seized as presumed proceeds of illicit activities) and the right of the third-party assignee of the mortgage credit, who acquired the right without being directly involved in the original illicit act.

The Court had to resolve the issue concerning the burden of proof on the assignee to obtain protection of their right, particularly with reference to Articles 104-bis of the Implementing Provisions of the Code of Criminal Procedure and 52 of Legislative Decree No. 159/2011. The decision had a significant impact, annulling with referral the previous decision of the Preliminary Investigations Judge (GIP) of the Court of Catania, which had excluded the good faith of the bank assigning the mortgage credit solely on the basis of the omission to verify the anteriority of the seizure to the assignment.

In the context of extended confiscation, the assignee of a mortgage credit who acquired the right after the seizure of the collateral asset, in order to obtain protection of their right pursuant to Articles 104 bis of the implementing provisions of the Code of Criminal Procedure and 52 of Legislative Decree No. 159 of September 6, 2011, has the burden of proving the original creditor's good faith regarding the absence of the credit's instrumentality to illicit activity, as well as their own good faith, understood as the absence of fraudulent agreements with the recipient of the confiscation measure. The assignee's knowledge or knowability of the precautionary measure's application at the time of acquisition is irrelevant, as they step into the same legal position as the assignor. (Case relating to a "bulk assignment" governed by Article 58 of Legislative Decree No. 385 of September 1, 1993, in which the Court annulled the decision that had excluded the good faith of the bank assigning the mortgage credit solely on the basis of the omission to verify the anteriority of the seizure to the assignment).

The ruling of the Supreme Court of Cassation unequivocally clarifies the prerequisites for the protection of the third-party assignee. The Court establishes a dual burden of proof: the assignee must demonstrate not only their own good faith, understood as the absence of fraudulent agreements with the subject of the confiscation, but also the good faith of the original creditor. The latter translates into the absence of the credit's instrumentality to illicit activity. In other words, the credit must not have been a mere tool for money laundering or covering illegal operations.

The crucial point of the ruling lies in the assertion that the assignee's knowledge or knowability of the precautionary measure's (seizure) application at the time of acquiring the credit is irrelevant for their good faith. This is because, in the mechanism of credit assignment, the assignee steps into the same legal position as the assignor. This means that the assessment of the credit's "soundness" and its origin must be attributed to the original assignor. If the credit was not instrumental to the illicit activity for the assignor, this condition transfers to the assignee, regardless of their subsequent knowledge of the seizure.

This interpretation is fundamental, especially in the context of "bulk assignments" of credits, governed by Article 58 of Legislative Decree No. 385/1993 (Consolidated Law on Banking), typical of banking operations. The Supreme Court of Cassation, in fact, annulled the decision that had erroneously excluded the good faith of the assigning bank (G. B. S.p.A.) based solely on the omission to verify the anteriority of the seizure. A clear distinction is thus drawn between the diligence required in ascertaining the legal status of the asset and the good faith relating to the origin and nature of the credit.

Practical Implications for Financial Operators

Judgment No. 30611/2025 offers valuable guidance for banks and credit institutions engaged in credit assignment operations, especially those secured by mortgages. The burdens of proof imposed on third-party assignees require careful evaluation and meticulous due diligence. In summary, the assignee must be able to demonstrate:

• The legitimacy and non-instrumentality of the credit in the hands of the original assignor with respect to illicit activities.
• Their own lack of involvement in any fraudulent agreements or collusion with the subject of the confiscation measure.
• The understanding that mere knowledge of the existence of a seizure, if not accompanied by elements demonstrating collusion or participation in the illicit act, is insufficient to invalidate good faith.

This ruling effectively imposes a more in-depth analysis of the credit's history and its original holder, shifting the focus from a mere formal verification of the asset to the substance of the transaction and its non-reducibility to illicit circuits. This requires more robust internal procedures and greater attention during the acquisition phase of credit portfolios.

Conclusions: A Delicate Balance Between Asset Protection and Legal Certainty

The judgment of the Supreme Court of Cassation No. 30611/2025 represents an important step in Italian jurisprudence, seeking to balance two fundamental needs: the effectiveness of State action in combating crime through the seizure of illicit assets and the necessity of protecting legal certainty and the legitimate interests of third parties acting in good faith. The decision clarifies that the protection of the third-party assignee is not automatic but requires the demonstration of qualified good faith, which encompasses both their own conduct and that of the original assignor.

This orientation helps to more precisely define the scope of responsibility for financial operators and the extent of their checks, offering a clearer framework for managing complex situations that intersect criminal law with commercial and banking law. It serves as a reminder for constant vigilance and a thorough understanding of the regulations to navigate safely in an ever-evolving legal context.