The following is from July 2, 2019 and no. 35/2019 Decision of the Multi-Member Court of First Instance of Alexandroupolis, on yet another case that was successfully handled by our office, which, accepting the Appeal by a majority, annulled in its entirety the Payment Order issued by Piraeus Bank for the amount of 300,000.00 euros.
In particular, it accepted that a consumer is also a merchant who receives credit from a bank to cover his financial needs as the final recipient of services to consume them and not to offer them further in exchange and when he enters into transactions that are helpful for his specific commercial activity . Therefore, it falls under Law 2251/1994 "on consumer protection" regarding "abusive clauses of contracts concluded with consumers".
Subsequently, it considered that the term of the contract under which the one-day interest rate is determined on the basis of a 360-day year is abusive, since the defaulters were charged 1.3889% more interest, which during the operation of the contract was compounded from the first day of delay them, and the sums resulting from the aforementioned illegal compounding were included in the capital every six months, in accordance with the relevant term of the contract and were re-interested as part of the capital, with the result that the claim becomes unliquidated in its entirety according to the provision of article 624 of the Civil Code .
Consequently, it canceled the Payment Order in its entirety, which had been issued for a debt of 300,000.00 euros plus interest and costs.
The following is the text of the Decision (edited only to delete the names of the parties)
DECISION: 35/2019
THE MULTIMEMBER COURT OF FIRST INSTANCE OF ALEXANDROUPOLI
SPECIAL PROCEDURE FOR PROPERTY DISPUTES
COMPILED by judges Sofia Platakis, President of the Court of First Instance, Dimitrios Theodorakopoulos, Court of First Instance and Dimitrios Christopoulos, Court of First Instance - Reporter, as well as by the secretary Maria Nitsaki.
MEETED publicly, in his audience, on June 12, 2019, to hear the opposition to article 632 of the Civil Code, between:
OF THE CONTRACTORS: 1) An anonymous company with the name “………..” which is based in Alexandroupoli ….. and is legally represented, with VAT ID……….., 2) ……….. of ….., a resident of Alexandroupoli (…..), with VAT number ….., 3) …….of ….., resident of Alexandroupoli, with VAT number ……. and 4) …….., a resident of Alexandroupolis (……..), with VAT number….., who appeared through their attorney Thomas Kalokiris of the Board of Directors Thessaloniki.
THE REVIEW OF: An anonymous banking company with the name "BANK OF PIRAEUS S.A." which is based in Athens (Amerikis street no. 4) and is legally represented, with VAT number 094014298, which was represented by the attorney of the lawyer ………..
DURING THE DISCUSSION of the case, the attorneys of the parties, after developing their claims, asked to accept what is mentioned in the minutes and in the proposals they filed.
STUDY THE LITERATURE
CONSIDERED ACCORDING TO THE LAW
With the objection in question, the objectors request, for the reasons they specifically mention therein, the annulment of no. 140/1205/D.P./140/21-11-2018 payment order of the judge of this Court, by which they were obliged to pay the defendant, each jointly and severally, the sum of €300,000.00, plus interest and expenses. The objection competently in substance and in place is brought for discussion before this Court in the relevant special procedure of property disputes (article 632 par. 1 and 2 of the Civil Code), and it has been filed legally and within the time limits, since an exact copy of the disputed payment order was served to the first objector on 30-11-2018 (as evidenced by the relevant notation of the bailiff at the Court of First Instance of Alexandroupolis... on the served copy of the payment order), while an exact copy of the considered objection was legally served to the defendant's attorney on 21 -12-2018 (as evidenced by No. 11138Γ721 -12-2018 service report of the bailiff at the Court of First Instance of Alexandroupolis ....). Therefore, it must be formally accepted and further investigated as to the admissibility and legal and substantive validity of its reasons.
When the existence or amount of the claim is disputed with the objection, this reason constitutes a denial, since the defendant in the objection, who is the plaintiff, has the subjective burden, according to the general procedural rule of article 338, paragraph 1 of the Civil Code , for proof with a public or private document, of the existence and amount of his claim (AP 1861/2011 TNP Law). It is also permissible to agree that the creditor's debt to the creditor bank, which will prevent the final closing of the credit, will be proven by extracts from the bank's commercial books (AP 370/2012, AP 925/2006 TNP Law). With this agreement, private documents are given full evidentiary power, which otherwise they would only have under the conditions of article 448 of the Civil Code, in the absence of which they would be mere judicial presumptions (339 of the Civil Code), except the burden of proof is not reversed, as the borrower retains the right to counter-proof, even if the contrary is agreed (AP 430/2005 TNP Law). If, upon exercise of the relevant right, the debtor disputes with grounds of opposition the liquidation of the claim for which a payment order was issued, it is not required for certain of this reason to specify the amount to which the claim would have amounted if it had been liquidated (EfPir 711/2011, EfPir 5/2011 TNP Law), as, as stated above, the burden of supporting the positive and negative conditions for issuing a payment order is borne by the lender. As regards a bank's claim from a loan contract, which according to the procedural agreement of the parties is fully proven by the excerpts of its commercial books, in the event that the debtor against whom a payment order has been issued on the basis of the excerpts, invokes by opposing and prove that it is an invalid condition of the loan by virtue of which the debt from the loan has been burdened with additional sums of money beyond the capital, such as interest and expenses which have been compounded, capitalized and re-interested, with the result that their separation and removal becomes impossible from the total claim with simple mathematical calculations and therefore not proving its exact amount from the excerpts submitted for the issuance of the payment order, questions not only the existence of the negative condition related to the certain amount of the claim, the fact that it is not i.e. the unsettled one, but also the positive condition of the one related to the written proof of its exact amount. The contrary view that the objector must not only plead that the claim is unsettled, but in addition specify the amount by which the claim is unsettled in order for the relevant ground of objection to be established, entails the impermissible covert reversal of the burden of proof, since in this way, the obligation of the objector and applicant for the issuing of a payment order is transferred to the objector, to state the exact amount of his claim and to prove in writing that it is certain and settled. However, the bearer of the burden of proof also bears the burden of invoking the evidence, and therefore, in the event that the objector disputes and by a greater reason in the event that he proves that the claim for which the payment order was issued, the defendant he is the one who will have to plead and prove to what extent his claim has been settled, as long as this is possible from the documents submitted with his application, otherwise the payment order is voidable in its entirety due to non-compliance with the said negative condition for its publication. Also, the point of view in which the reason for the objection is defined by which the liquidation of the claim is disputed, but, if the objector does not invoke the amount by which it is unliquidated, an accounting expert should be ordered to find it, in order to cancel the corresponding part of the payment order and not in its entirety, leads to a circumvention of the provisions of articles 623 and 624 of the Civil Code, as the need to carry out an accounting expert opinion presupposes that the amount of the claim for which the payment order has been issued is not certain and its exact amount is not proven by the documents provided. The finding of the above, however, leads for the above-mentioned reasons to the cancellation of the payment order and not to the issuance of a decision to carry out an accounting expert opinion, which might have been the appropriate one if the award of the loan claim was sought through a lawsuit, during the regular procedure, in however, in a trial of the opposition, where it is judged, among other things, whether the procedural conditions for the valid issuance of the payment order were met at the time of the submission of the application, it is impermissible to retroactively make up for the lack of the aforementioned conditions, especially with evidence that is not appropriate for the issuance of a payment order as it is not a document within the meaning of article 623 of the Civil Code.
According to the provision of article 2 par. 6 of Law 2251/1994 "On consumer protection", as this article was in force after its replacement by article 2 of Law 3587/2007 and is applicable in this case, the terms formulated in advance for an indefinite number of future contracts are prohibited and void if they result in disturbing the balance of rights and obligations of the contracting parties to the detriment of the consumer. And according to par. 7 of the same above article, abusive, indicatively, are the GOS, which, among others, ... k) without any important reason leave the price undefined and do not allow its determination with criteria specifically defined in the contract and reasonable for the consumer. The above, mentioned indicatively, cases of general conditions are considered without exception by the law as abusive, without the need for them to meet the conditions of the general clause of par. 6 of article 2 of Law 2251/1994. However, the cumulative application by the court of paragraphs 6 and 7 of article 2 of Law 2251/1994 is not excluded, as the invocation of the general evaluative criterion of "disturbance of the balance of the rights and obligations of the contracting parties to the detriment of the consumer" is possible to have value and utility for the specialization of vague legal concepts and vague evaluative criteria, which the law uses in the individual cases of the indicative list. Besides, the special cases described by the law, based on an irrefutable presumption of abuse, are indicators that guide the interpretation of the general clause and specifically of the concept of disturbing the balance. Among the guiding principles, which are derived from these special cases, is the principle of transparency, as well as the principle of the prohibition of assigning without reason the determination of the supply or its individual elements to the absolute discretion of the supplier. In particular, in accordance with the principle of transparency, which is also explicitly reflected in article 5 of Council Directive 93/13/EEC of 5-4-1993 "Regarding abusive clauses in contracts concluded with consumers", GOS must are formulated in a clear and comprehensible way (OlAP 15/2007 CJEU 2007/975, AP 904/2011, AP 1219/2011 TNP Law). Clarity is about the legal consequences of a clause, i.e. the consumer's rights and obligations. For this reason, vague or ambiguous clauses may not be used by the supplier in order to strengthen his position vis-à-vis the consumer. In particular, with regard to adverse financial consequences and burdens, these should be clear in the sense that they can be readily understood by the average consumer, who does not possess specialized legal or financial knowledge. Transparency refers to the clear and comprehensible wording, the principle of definite or certain content and the principle of predictability of the existence of the terms. Opaque clauses that hide the real, legal and financial situation create the risk that the consumer will either refrain from exercising certain rights, or accept claims that the supplier actually has. In this light, opaque clauses may lead, precisely because of their opacity, to the disturbance of the contractual balance according to article 2 par. 6 of Law 2251/1994. For this reason, the GOS, obeying the above principle, must present the rights and obligations of the parties in a certain, correct and clear way (AP 430/2005 ElDni 2005/802). Therefore, the method of calculating the interest rate of a loan agreement should be clearly described and defined for the consumer and the consumer should understand with complete clarity the obligation he undertakes in terms of the interest rate of his loan, otherwise the contract suffers from invalidity relevant term (EfATH 1471/2013, EfATH 5101/2011 TNP Law). Furthermore, in article 1 par. 4 of the above law it is defined that a consumer is any natural or legal person for whom the products or services on the market are intended or who makes use of such products or services, as long as they are their final recipient . Thus, a necessary condition in order for the person seeking the protection of the law to be considered as a consumer, is that these are products or services offered on the market and that the person supplying the products or services is their final recipient. A consumer, after all, is considered the final financial recipient of the above products and services, offered on the market, regardless of whether they aim to satisfy non-professional needs, as required by the previous law (article 2 no. 1 of Law 1961/1991). A consumer, therefore, is also considered a trader who receives credit from a bank to cover his financial needs as a final recipient of services to consume them and not to offer them further in exchange and when he enters into transactions that are helpful for his specific commercial activity ( OlAP 13/2015 TNP Law).
The term of the loan agreement which provides that the interest is calculated on the basis of a 360-day year runs counter to the principle of transparency, which requires that the terms be formulated in a certain, correct and clear manner, so that the average consumer, who does not have specialized legal or financial knowledge, but has the average perception when forming his jurisprudential decision, to be aware of the contractual obligations he undertakes, especially regarding the relationship of provision and consideration. By calculating the interest rate in a year of 360 days, the consumer is not informed of the (real) annual interest rate, as it should be determined according to the provision of article 243 par. 3 of the Civil Code. The lending bank splits, with this term, completely artificially and in deviation from the justified expectations of the consumer, the period of time (the year), in which the interest rate should have been referred to, thus creating an additional burden on the consumer-borrower, the which now - when the one-day rate is determined on the basis of a 360-day year - for each day is charged with 1.3889% more interest, since the rate is subdivided to determine the interest by 360 days, without this additional charge being justified by invoking some complex nature of the service provided or by some reasonable reasons for the consumer or by some justified interest of the bank. This, in particular, in an era where electronic means offer, without any additional difficulty, the precise calculation of interest with a year of 365 days (AP 430/2005 TNP Law). After all, the year of 365 days is valid and applied today, as per the requirement of: a) the Community Directive 98/7/EC, which was incorporated into our national law with the Official Gazette Z1 -178/13.2.2001 (Government Gazette B' 255/9.3 .2001), and b) of the Community Directive 2008/48/EC which was incorporated into our national law with the Official Gazette Z1- 699/23.6.2010 (Government Gazette B' 917/23.6.2010), which demonstrates the importance it attaches to both the community as well as the national legislator for the precise determination of the interest rate in this way (EfPier 711/2011, EfPier 52/2011 TNP Law). The aforementioned are in no way negated by the provision of article 3 par. 1 of Law 2842/2000 "On the replacement of the drachma with the euro", according to which any reference to the Athens interbank lending rate (Athibor) is automatically replaced by a reference to the interest rate Euribor, in which the actual days and the year of 360 days adjusted according to the ratio 365 to 360 are taken into account as the basis of interest calculation, but neither from the no. 30/14-2000 (Government Gazette A' 43/2000) act of the Monetary Policy Council, according to which the mandatory deposits of credit institutions at the Bank of Greece will bear interest based on a 360-day annual interest calculation. And this, because it is obvious that the above provisions are unrelated to the need to protect consumers as weaker negotiating parties in the context of their transactions with banks, as the first of the above provisions referring to the Euribor interest rate, which is the average interbank lending rates in the Eurozone, which is established daily by the ECB on the basis of the announcements of 57 selected banks, stipulates that the basis for calculating the reference rate in question will be the year of 360 days, while the second referred to the mandatory deposits of Greek credit institutions in the Bank of Greece, abolishing until then the distinction between interest and non-interest bearing part of said deposits, stipulates that from now on these will all be interest at a rate determined by an act of the Monetary Policy Council and that the interest will be paid from the Bank of Greece to the depositary banks on the second working day after the end of each maintenance period, calculated on the basis of a 360-day year. Therefore, in the latter case, the above calculation concerns the interest rate of the mandatory deposits of the banks and implies the collection by the latter of more interest from the Bank of Greece than if the interest rate were calculated based on a year of 365 days. However, the Bank of Greece, as the custodian of the compulsory deposits of the Greek banks and as the supervisory authority of the latter, cannot be assimilated either in terms of its institutional role, nor in terms of its negotiating power and position with the consumers - clients of the banks , so that either it needs the special protection that the latter need as traders and final recipients of their financial products, or conversely consumers are subject to burdens of a similar content to it.
In this case, the objectors with the seventh ground of objection state that during the disputed credit agreement, based on a related vague and unclear term thereof, the defendant charged the account kept for monitoring the credit with interest on a 360 year basis and not 365 days, with the consequence that they, as consumers, are not informed of the real annual interest rate and are burdened with 1.3889% additional interest for each day. Based on this background, they challenge the entire claim embodied in the impugned payment order and seek its annulment. With this content, the specific reason for objection is defined, the contrary claim of the defendant being rejected, since the stated reason for objection does not affect the accounting balance of the awarded claim, but primarily the validity of the relevant contractual term, the application of which led to the illegal increase of the defaulters' debt, and legal, based on the provisions of articles 243 par. 3, 281 AK, 2 par. 6 and 7 of Law 2251/1994. Therefore, it needs to be further investigated from a substantive point of view.
From all the legally and subpoenaed documents presented by the parties, the following are proven: By virtue of No. 1014529/27-6-2001 of a credit agreement with an open mutual account drawn up between each bank and the first objector, and the nos. 1014529/1/12-6-2006, 1014529/2/4-1-2008, 1014529/3/22-7-2008 and 1014529/4/3-3-2009 of acts of amendment of the original contract, respectively granted in the first overdue credit up to the amount of €700,000.00, to cover exclusively its cash needs in the context of the exercise of its commercial activity, which (credit) would be serviced with an open mutual account. This contract was co-signed as guarantors by the second, third and fourth of the objectors, unconditionally accepting all the terms of the contract and each of them being unlimitedly and jointly liable for the payment of any debit balance that would arise at the expense of the first objector (clause 20 of the contract ). With condition 2.1 of the contract, the following was expressly agreed: "The loan bears interest at an annual rate, for the currencies included in the table attached below and not otherwise agreed, fluctuating which calculated in a year of 360 days, consists of the base lending rate (or the preferential one that can only be agreed if the credit has been granted in euros/drachmas) that applies to the currency in which the credit has been granted or part of it and the margin (spread), plus the levy of Law 128/1975" . Furthermore, it was agreed that in case of default, the creditor would be charged with default interest, and the default rate was set at 2.5% higher than the contractual interest rate (term 2.4), that at the end of each calendar quarter, the credit account would be periodically closed according to article 112 EISNAK (clause 6.1), and that the compounding (capitalization) of any unpaid interest (contractual or arrears) and costs would be done semi-annually (clause 2.4). Finally, in clause 10 of the contract, it was agreed that extracts or copies extracted from the bank's books would constitute full proof of the defendant's claim. To service the credit, the no. 5350025001515 account, which on 7-7-2017 showed a debit balance of €474,106.64. On the above date, because the creditor did not fulfill her contractual obligations and in particular was not consistent in her payments, the defendant terminated the contract and closed the above account. The defendant notified the objectors of the termination of the contract and the closure of the account that served her, with the out-of-court declaration - notification - invitation of 2-11-2017 which was legally notified to the objectors (as appears from the no. 11.417D ', 11.418Δ', 11.419Δ' and 11.420Δ72-11-2017 service reports of the bailiff at the Court of First Instance of Alexandroupoli ....), at the same time he did not declare to them that he will refrain from any further judicial action for a period of 15 days, in order to examine any request they may have for settlement of the debt in the context of the Code of Ethics of Law 4224/2013. No agreement was reached between the parties for the settlement of the debt, and subsequently, following her relevant application, the defendant obtained the issuance of the contested no. 140/1205/D.P./140/21-11-2018 payment order of the judge of this Court. Further, it is proved that the aforementioned no. 2.1 condition of the contract, was formulated in advance by the defendant in a printed text, given that it was included in the general terms of transactions, under which the defendant granted credit serviced with an open mutual account to an unspecified number of its customers, resulting the said article not to be a subject of negotiation between the parties, but, on the contrary, was imposed on the objectors as a given and non-negotiable. The fact that the specific text was pre-formulated is characteristically evident from its very content ("The credit is interest-bearing at an annual rate, for the currencies included in the attached table below and it has not been agreed otherwise..."). However, the disputed condition 2.1, was invalid, due to abuse, noting that the person of the interrupters has the status of a consumer, within the meaning of Law 2251/1994, according to what is mentioned in the above-mentioned main consideration under element (III), since the creditor used said credit exclusively to cover her cash needs, as the final recipient of the bank's services, while the second, third and fourth of the defaulters guaranteed to the bank the timely and complete payment of all the creditor's debts. More specifically, condition 2.1 of the contract conflicts with the principle of transparency and deprives the objectors of the opportunity to be informed of the (real) annual interest rate as it should be determined in accordance with the provision of article 243 par. 3 of the Civil Code. The respective bank split up with the specific term, completely artificially and unjustifiably and in deviation of the justified expectations of the borrowers, the period of time (the year), to which the interest rate must be referred, thus creating an additional burden on the creditor, the which now – when the one-day rate is determined on the basis of a 360-day year – for each day
incurs 1.3889% more interest. Therefore, it is proven, the illegal burden of the disputed claim, which was awarded with the contested payment order, with interest more than 1.3889% per day, which during the operation of the contract was compounded from the first day of their delay, and the resulting amounts from the above illegal interest were incorporated into the capital every six months, in accordance with the relevant term of the contract and re-interested as part of the capital. In view of the above assumptions, it is concluded that the formation of the debt of the parties to the defendant from the disputed contract is the result, at least in part, of the application of an abusive, i.e. illegal, term. However, the amount of these illegal charges, in this particular case, cannot be determined from the account kept by each and the entries in the statements on the basis of which the suspended payment order was issued, since it does not emerge from them, nor the interest rate for calculating contractual interest, nor the amounts of contractual interest and default interest, as well as the amounts resulting from their compounding, with the result that the claim becomes unliquidated according to the provision of article 624 of the Civil Code.
However, a member of the Court, namely the President, had the following opinion: The seventh ground of the objection, as per the content and request set out above, is rejected in advance as inadmissible due to vagueness, since the objectors do not state in their objection the exact amount of the excess burdening them with interest, while they in no way link their claim to the individual funds of the disputed loan account (and by extension, the payment order), without the general questioning of the entire claim being sufficient. In particular, in the credit agreement with an open (reciprocal) account, even if it includes a special agreement that the creditor's debt to the creditor bank that will prevent the final closing of the credit will be proven by the extract from the bank's commercial books, the the creditor has the right to dispute the specific funds contained in these passages by objecting in accordance with article 632 of the Civil Code, and in this case he bears the burden of his relevant counterclaims, which must be clear and certain, so that they become the subject of receipt (AP 1071/2017 TNP Law). Moreover, the more specific identification of the funds that are contested is necessary for the additional reason that the possible invalidity of a certain fund implies the invalidity of a corresponding amount of the contested payment order, without affecting it as a whole (EfThes 2613/2017, EfDod 45/2017 TNP Law ). In any case, the above reason for opposition is rejected as illegitimate, since according to the provision of article 3 par. 1 of Law 2842/2000 on the replacement of the drachma with the euro, any reference to the Athens interbank lending rate (Athibor) which provided for in existing legal acts, within the meaning of Article 1 of Regulation 1103/1997, are automatically replaced by a reference to the Euribor interest rate, in which the actual days and the 360-day year are taken into account, as a basis for calculating interest, adjusted accordingly 365 to 360. The same applies to the compulsory deposits of credit institutions at the Bank of Greece, following the act of 30/14-2000 (Government Gazette A' 43/00) of the Monetary Policy Council, in which the total amount of the compulsory deposit of each credit institution will bear interest, while the interest is calculated on the basis of a 360-day year. And yes, with KYA FI-983/7.21-3-1991, article 14 sec. d', as replaced by article 5 par. 3 a' of KYA ZI-17818/13. 2.9/32001 (Government Gazette B' 255/2001), which were issued to harmonize national legislation with Community Directive 87/103/EEC, as amended by Directive 90/88/EEC and Recommendation 97/489 of the EU Commission , a year duration of 365 days, 52 weeks and 12 months equal to them is established for consumer credit, except that this regulation concerns transactions made with electronic means of payment and in particular the relationship between the issuer and the credit card holder (Official Decree 2613/2017, EfThes 166/2017, EfATH 1159/2012 TNP Law).
Pursuant to all of the above, the above ground of objection must be accepted, by a majority, as substantively valid and the challenged payment order must be annulled in its entirety, excluding the investigation of the admissibility and legal and substantive validity of the remaining grounds stoppage. Finally, legal costs must be offset between the parties because the interpretation of the rules of law applied was particularly difficult (Article 179 of the Civil Code).
FOR THOSE REASONS
JUDGES opposition of the parties.
ACCEPTS, by majority, the objection.
CANCELS the contested no. 140/1205/D.P./140/21-11-2018 payment order of the judge of this Court.
AWARDS court costs between the parties.
DECIDED, decided in Alexandroupolis on June 19, 2019 and published in an extraordinary session in his audience on July 2, 2019 without the presence of the parties and their attorneys.
THOMAS KALOKYRIS
LAWYER MDE
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