Cancellation of seizure and auction due to abuse – Decision No. 34/2025 of the Court of First Instance of Kavala

The Kavala Court of First Instance, in a case that our office successfully handled, with the no. 34/2025 Decision, annulled seizure and auction, judging the fund's actions to expedite the auction are abusive in real estate of multiple value in relation to the claim, based on which it is accelerated. 

In particular, the The Court of First Instance of Kavala accepted our relevant objection., considering that: 

“This Court finds that the acceleration of of the aforementioned auction is carried out in obvious excess of the limits, which, under the provision of article 281 of the Civil Code, good faith or good morals or the socio-economic purpose of the defendant's right to object. In particular, the fact that the value of the first seized property is approximately four times greater than the amount of the claim of each party and the value of of the second seized property is approximately five times greater than the amount of the claim of each party, on the basis of which the opposition is expedited forced execution against the property of the objector, constitutes circumstance which renders the exercise of her right by the defendant impossible tolerated according to the legal and moral concepts and ideas of the average social and a foolishly thinking person.

Additionally, it is large enough difference between the value (appraisal price - first offer price) of each seized property and the claim of the defendant to which the objection has the consequence there is a clear disproportion between the means used execution and the intended purpose, since the defendant's opposition forced execution exceeds the limits of the opposition's sacrifice (debtor).

Therefore, by accelerating the aforementioned auction the impression of a strong injustice is created against the objector – the party liable to relation to the benefit of the beneficiary of the opposition, in accordance with what are included in the legal consideration under item IV of this present. Therefore, the exercise by the defendant of its right to seize for auction the
multiple times the value, in relation to its executed claim, real estate property of the opponent obviously exceeds the limits imposed by good faith and good morals, but also from the social and economic purpose of the right and therefore, it is abusive, within the meaning of of the aforementioned provision of article 281 of the Civil Code and is therefore invalid, because the contested report of compulsory seizure and the consequent
auction appear as measures of extreme cruelty for the opposing, which exceed the tolerable limits of her sacrifice“.

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An excerpt from No. 34/2025 Decision of the Court of First Instance of Kavala

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DECISION NUMBER: 34/2025 
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF KAVALA SPECIAL PROCEDURE
PROPERTY DISPUTES
CONSTITUTED by the Judge of First Instance, appointed by the Director
the Kavala Court of First Instance, President of the Courts of First Instance and by the Secretary,
HE SAID publicly in his audience, on November 26, 2024, to judge
the application with filing report number 347/29-07-2024 opposition, between:
OF THE DEFENDANT: ….. who was represented by her attorney, Thomas Kalokyri (Thessalonica Board of Directors No.: 11982, who presented and filed the number 3390245/22-11-
2024 promissory note for advance payment of contributions and stamps of the Bar Association
Thessaloniki), who submitted proposals.
OF THE COURT THE STOPPING: Of the Loan and Credit Claims Management company that
represented by her attorney-in-fact, (Registration No. Kavala: which
presented and deposited the numbered contribution advance payment slip and
of the Kavala Bar Association), which submitted proposals.

[…] DURING THE DISCUSSION of the case, the parties appeared as stated
above, and the attorneys for the parties orally presented their arguments and requested that what is stated in the minutes of the meeting of this Court and in their written submissions be accepted.

AFTER STUDYING THE LITIGATION

IT WAS THOUGHT IN ACCORDANCE WITH NOMO
With the present opposition petition, the opponent requests for the reasons
which specifically refer to this to be cancelled: a) the check from 09-05-2024
for payment, I have registered below a copy of the first executor's register
with the payment order number of this Court and b) or with the number
report of forced seizure of real estate by the judge
curator of the Thrace Court of Appeal region based in the Kavala Court of First Instance,
and the numbered extract of the aforementioned seizure report, pursuant to the
which is being enforced against the person referred to in the report
real estate of the objector, as well as any other related act
Finally, it requests that the defendant be ordered to pay the amount in question.
due to legal costs. [….]
[…] IV. From the combination of the provisions of articles 281 of the Civil Code, 116 and 933 of the
Code of Civil Procedure and 25 par. 3 of the Constitution, it follows that the implementation with
forced execution of the creditor's claim against the debtor constitutes
exercise of a substantive right under public law. Therefore, because of
opposition under article 933 of the Code of Civil Procedure may also constitute the obvious
opposition to the accelerated enforcement procedure in
objective limits of good faith or good morals or social or
economic purpose of the right, set out in the provision of article 281 of the Civil Code.
Within the meaning of this provision (article 281 of the Civil Code), in order for the exercise to be considered
of the right as abusive, the obvious exceeding of the limits set should
good faith or good morals or the economic or social purpose of the
right arises from the prior conduct of the beneficiary or from
the actual situation that arose or the circumstances that intervened
or from other circumstances, which, without legally preventing the birth or
induce the extinction of the right, make its exercise intolerable
according to the legal and moral concepts of the average social person (EphATH)
(Mon) 2634/2022, EfAth Mon) 2472/2022, EfPatr (Mon) 488/2021, Brath
396/2021, BprTrik 109/2020, BprHalkidiki 174/2019, BprLam 42/2019, dem.
in TNP – LAW). Moreover, the principle of proportionality, with the individual principles
in which it is analyzed, sets limits that prohibit the use of means of execution,
and therefore the undertaking of the relevant enforcement actions, when these means are not
are appropriate to achieve the purpose of the enforcement procedure (principle of
suitability), when it is not necessary because there is another, milder means (principle of
necessity or the mildest means) and thirdly when they cause damage that
is disproportionately large and burdensome for the affected person, because the benefits
that the person seeking to expedite the execution acts is not in a suitable
logical sequence with its negative consequences for the defendant (BrAth 396/2021, BrTrik 109/2020, BrHalkidiki 174/2019, pub. in TNP –
LAW). The opposition of the accelerated payment on the part of the lender
enforcement in good faith and good morals is essential
defect in the enforceable title, which may lead to its annulment
Furthermore, the acts of seizure and auction of assets
of the debtor's data violate the principle of necessity or the milder
instrument, when the creditor's claim can be satisfied by another instrument
incomparably milder for the debtor, as with the seizure of other assets
debtor's assets, the value of which is less than the original
seized item, a value, of course, that covers the creditor's claim, so
the pursuit of this satisfaction by confiscating a disproportionate asset
value with the claim and to the detriment of the debtor is invalid as abusive.
Also, acts of seizure and auction of assets of
debtor violate the principle of proportionality, in the narrow sense, when
appear as measures of extreme cruelty for the specific debtor, the
which exceed the tolerable limits of his sacrifice, while at the same time the demand that
is performed is of small value and, therefore, the great disproportion between the
means of execution and the purpose for which it is imposed. In fact, the
The invalidity of the said execution acts occurs even if there are no
other assets of the debtor, which could be seized
(EfAth Mon) 2472/2022, EfPatriMon) 488/2021, Brath 396/2021, BpTrik
109/2020, Halkidiki Municipal Court 174/2019, published in the Civil Procedure Code – PREFACE). The question is whether the
consequences, which the exercise of the right entails, are burdensome for the
obliged, must also be dealt with in relation to the corresponding consequences
that may occur to the detriment of the beneficiary from the obstruction of
satisfaction of his right [EfATH (Mon) 2472/2022, EfPatr (Mon)
488/2021, published in the Greek Civil Procedure Code – LAW). In addition, abusive behavior,
which constitutes a clear violation of the limits set out in the provision of
Article 281 of the Civil Code, may also occur in the event that the
impression of intense injustice in relation to the beneficiary's benefit from the exercise
of the right (EfAth Mon) 2634/2022, published in TNP – LAW). It should be noted,
moreover, that the principle, according to which the creditor's right to expedite
or to continue enforcement to satisfy a financial claim
is subject to the restrictions of articles 281 of the Civil Code and 116 of the Code of Civil Procedure, it is expressly provided
by the Code of Civil Procedure, in the provision of article 951, paragraph 2 thereof, which stipulates that "The
seizure may not be extended to more than is necessary to
the claim is satisfied and to cover the costs of execution. "From the
This provision implies that the restriction of the abusive exercise of the claim
for forced execution manifests itself as a threat of invalidity of the acts of
direct or indirect enforcement, such as seizure of property
the debtor's value disproportionately greater than the amount of the substantive claim
of the accelerating (see ref. Nikolopoulos in Keramea/Kondyli/Nika, Interpretation
Code of Criminal Procedure, volume II, edition 2000, article 951 number 4, pp. 1835 – 1836). In each
case, it is a defect relating to the specific execution act,
which results in its invalidity. The action on the part of the person who hastens
specific enforcement action, e.g. a warrant, seizure or
of the auction in a manner contrary to its purpose or to good faith
or good morals leads to the invalidity of the specific act, presented in the
deadlines set for its display (BrAth 396/2021, BrTrik
109/2020, Halkidiki Municipal Council 174/2019, published in the Municipal Law – PREFACE, see ref.

Nikolopoulos in Keramea/Kondyli/Nika, Interpretation of the Code of Civil Procedure, volume II, edition 2000,
article 934 number 10, p. 1788, where further references are also provided).
With the fourth ground of opposition, duly assessed, the opponent requests:
the annulment of the contested report of compulsory seizure of real estate
property, claiming that the seizure imposed on the property
is abusive, given that the value of the seized properties is
disproportionately large in relation to the amount of the claim, for the satisfaction of the
which is being enforced against her. That, in particular, the value of
seized properties, whose auction is imminent on 05-02-2025,
amounts to the amounts of 70,000 euros and 95,000 euros, while the claim of the court,
whose satisfaction is sought through forced execution, amounts to
amount of 18,343.56 eurosThis reason, which is used to oppose
the objective criteria of the provisions of articles 281 of the Civil Code, 116 of the Code of Civil Procedure
and 25 par. 3 of the Constitution after the order of execution and as a result
This concerns the enforcement procedure, it is within the deadline,
in accordance with the provisions of article 934 par. 1, paragraph a' and 2 of the Code of Civil Procedure, designated and
lawful, according to what has been said in the aforementioned legal opinion of
hereof, based on the aforementioned provisions of articles 281 of the Civil Code,
116 of the Code of Civil Procedure and 25 par. 3 of the Constitution and therefore, it must be investigated
further and in terms of its substantive validity.
From the assessment of all the evidence presented before him
this Court and in particular, from all the documents, without exception, which the
parties invoke and submit to the Court in support of their
of their alleged claims on both sides, without the explicit mention of some
gives them increased evidentiary power compared to other documents, for
which are not specifically mentioned, since all are equivalent and all without exception
are taken into account for the expression of the judicial judgment (AP 623/2018, published in the TNP –
LAW), and which above means of evidence are taken in their entirety
into account, even if they do not meet the terms of the law (articles 591 par. 1 sub. a' and
340 par. 1 of the Code of Civil Procedure, as replaced by article 1, article two, par. 2 of the Law.
4335/2015) and are assessed by the Court either for direct proof as independent
evidence or for the collection of judicial evidence (articles 591 par. 1 sub. a',
339 and 395 of the Code of Civil Procedure, EfAig(Mon) 1/2021, published in TNP – PREFACE], some of the
which are mentioned in more detail below, without, however, omitting any
for the substantive diagnosis of the difference [AP 827/2020, AP 78/2020, AP
306/2018, AP 342/2016, AP 491/2015, AP 122/2013, EfPeir Mon) 47/2021,
EfAig(Mon) 1/2021, EfAig(Mon) 50/2020, EfAth 338/2020, public in TNP –
LAW) and without under any circumstances disregarding the evidentiary value
of the others, in combination with the provisions of the law, in a timely manner
submitted proposals of the parties, are proven, at the discretion of the
Court, the following facts: By virtue of the number
mortgage loan agreement, drawn up in Kavala, between the
legal representatives of the banking company with the name "as a lender"
and the objector in the capacity of the debtor, the former granted to the
second loan of 130,000 euros. The opponent did not respond to the
contractual obligation to pay the amounts of the installments due for the
repayment of the above loan. Upon request of the above banking
company, the payment order numbered by the Single Judge was issued
Kavala Court of First Instance, which ordered the appellant to pay the lending bank the amount of 18,343.56 euros, with interest, at the contractual interest rate.
default, which exceeds by 2.5 percentage points the current
contractual interest rate, from 18-06-2011, the day following the date of delivery of the
extrajudicial declaration - invitation, until payment, as well as the amount of 306
euros for court costs of issuing the said payment order. Subsequently, the
the opposition, in its capacity as business manager
claims, which were transferred from the above banking company to
foreign special purpose company with the name and among which
(of claims) included the disputed claim, delivered to the opponent,
by virtue of the numbered service report of the district bailiff
of the Court of Appeal of Thessaloniki, exact copy of the first executive inventory of
aforementioned payment order after the check dated 09-05-2024 to
payment, by which he ordered her to pay to the defendant, under the above
in her capacity, the following amounts: a) for adjudged capital the amount of 18,343.56
euros, with interest from 18-06-2011, the day after the service of the extrajudicial complaint, with
the contractual default interest rate, which exceeds by 2.5 percentage points
units of the current contractual interest rate, until repayment, b) for awarded
court costs in the amount of 306 euros, with legal interest from the day after
notification of the first check to be paid, i.e. from 16-09-2011, c) for
delivery of the first check for payment of the amount of 50 euros, with legal interest from the
the day after the notification of the first check for payment, i.e. from 16-09-2011
and d) for service of an inventory with the contested check the amount of 68.20
euros including VAT 24%, legal interest from the day after
notification of the judicial check, and all the above amounts to be repaid with interest
according to the above distinctions until their full and complete repayment.
Subsequently, with the defendant's acceleration, the opposition, by virtue of the report number
forced seizure of real estate by the bailiff of
of the Thrace Court of Appeal, based in the Kavala Court of First Instance, member of the Civil
Renovation Company of Bailiffs with the name * with headquarters in
Kavala, a forced seizure was imposed on two properties belonging to
ownership of the opponent and in particular: 1) the right of full ownership of
percentage of 100% of an independent and independent horizontal property, according to
with the provisions of Law 3741/1929 and Legislative Decree 1024/1971 and articles 1002 and 1117
AK, with number K.A.E.K. and specifically, the apartment ….. and 2) the right of full ownership in a percentage of 100% of an independent and independent horizontal property, in accordance with the provisions of L. 3741/1929 and L.D. 1024/1971 and articles 1002 and 1117 AK, with number
K.A.E.K. and specifically, the apartment…. With the same report of forced seizure
was set for the said properties on 05-02-2025, Wednesday and time from
10:00 to 12:00 of the same day, forced auction via electronic means
systems, before the certified for conducting electronic
Auctions of Notary Public of the Court of Appeals District
Thrace, residing in Municipality 1 and, in case of its obstruction,
before her legal representative, also certified. As an appraisal price
of the above properties was appointed by the above bailiff who
carried out the seizure, taking into account the report dated 28-06-2024
assessment of the hired certified company ……………which
estimate is signed by ………………….., the amount of 70,000 euros for the subject
item 1 property and the amount of 95,000 euros for the property under item 2, the
These amounts were also set as the first bid price for the auction of the
own properties (see related page 10 of the above forced sale report)
seizure). The opponent has already filed the contested opposition within the time limit,
requesting the cancellation of the above report of forced seizure of real estate
property, claiming, in the fourth ground of its opposition, that the
of the defendant the seizure imposed on her property
is being done abusively, because the value of the seized properties is disproportionately
large in relation to the amount of the claim, for the satisfaction of which
forced execution is being expedited against her. In this case, as
was presented, the demand of the defendant, for which the opposition was imposed
seizure of the above properties of the respondent and is expedited
forced execution against her, amounts to the amount of 18,343.56 euros,
according to the check for payment dated 09-05-2024, registered below
copy of the first executor's register with the payment order number of
of this Court, which constitutes the enforceable title, on the basis of which
the present forced execution against the property of the
objector, while the appraisal price and the first offer price for the above
properties in the same auction amounts to 70,000 euros and 95,000
euros respectively.

Accordingly, this Court finds that the acceleration of the
of the aforementioned auction is carried out in obvious excess of the limits, which, under the provision of article 281 of the Civil Code, good faith or good morals or
the socio-economic purpose of the defendant's right to object. In particular,
the fact that the value of the first seized property is approximately four
times greater than the amount of the claim of each party and the value of
of the second seized property is approximately five times greater than the
amount of the claim of each party, on the basis of which the opposition is expedited
forced execution against the property of the objector, constitutes
circumstance which renders the exercise of her right by the defendant impossible
tolerated according to the legal and moral concepts and ideas of the average social
and a rationally thinking person. In addition, she herself is sufficiently large
difference between the value (appraisal price - first offer price) of each
seized property and the claim of the party whose opposition results in
there is a clear disproportion between the means used
execution and the intended purpose, since the on behalf of each
opposition forced execution exceeds the limits of the opposition's sacrifice
(debtor). Therefore, by accelerating the aforementioned auction
the impression of a strong injustice is created against the objector – the party liable to
relation to the benefit of the beneficiary of the opposition, in accordance with what
are included in the legal consideration under item IV of this present. Therefore, the
exercise by the defendant of its right to seize for auction the
multiple times the value, in relation to its executed claim, real estate
property of the opponent obviously exceeds the limits imposed by
good faith and good morals, but also from the social and economic
purpose of the right and therefore, it is abusive, within the meaning of
of the aforementioned provision of article 281 of the Civil Code and is therefore invalid, because the
contested report of compulsory seizure and the consequent
auction appear as measures of extreme cruelty for the
opposing, which exceed the tolerable limits of her sacrifice, since it is obvious
great disproportion between the means of enforcement and the purpose, for
which is imposed, in violation of the principle of proportionality, which constitutes
fundamental rule regulating power relations, and it particularly implies
burdensome consequences for it, which make its implementation intolerable
demand of the plaintiff, through the auction of the disproportionately
of major value of seized real estate of the opponent, according to the laws and
moral perceptions of the average social person, since, according to what
were set out in the relevant legal consideration of this, the invalidity of the acts
execution occurs even if there are no other assets of the
debtor with a lower value, which could be seized. Note
and that in this case the disproportion between the amount of the claim is checked
each on the basis of the enforceable title, by virtue of which compulsory enforcement is expedited
execution, and the value of each auctioned property and not of the
in the event of claims that the lender expediting the execution may retain or
third-party creditors to the detriment of the opponent, facts for which there is no reason
is made by the defendant. Therefore, taking into account the capital of the above
of the defendant's claim, amounting to 18,343.56 euros, for which the
enforcement procedure, and the above commercial value (and first-hand price)
offer) of each seized property, amounting to 70,000 euros and 95,000 euros
respectively, the Court finds that the total commercial value of each seized
property is disproportionately larger and, in fact, many times larger than the
amount of the executed claim of each party as explained above.

Kfollowing the above, the acceleration of the contested enforcement procedure in
burden of the real estate of the objector and the imposition of the above
seizure constitutes an abusive exercise of a right on the part of the defendant,
since in view of the above it constitutes an obvious exceeding of the limits set
good faith, good morals and social and economic purpose dictate
of the right, within the meaning of the provision of article 281 of the Civil Code, in combination
and with those of articles 25 par. 3 of the Constitution and 116 of the Code of Civil ProcedureTherefore, the
The fourth ground of the contested opposition must also be accepted as substantively
well-founded and to annul the contested report of compulsory seizure.
It is noted that it is unnecessary to investigate the sixth and seventh grounds of opposition, which
against the contested seizure report, who are
no longer relevant, since they tend to annul the same act
enforcement, namely in that of the seizure report, since, by the
combination of the provisions of articles 68, 216, 218, 583, 585 and 933 of the Code of Civil Procedure,
It is clearly concluded that, when there are more reasons, legal or factual, that
all together or each individually aim at the same result, namely the
annulment of the same enforcement act, then, if the court accepts a reason
and satisfying the request of the opposition annuls the execution act, does not
must proceed to investigate the other reasons, as after the cancellation of the
of the execution act, it is considered that the legitimate interest of the
opposing. [….]
In view of the above, the present objection must be partially accepted.
article 933 of the Code of Civil Procedure and to cancel: a) some of the check dated 09-05-2024 to
execution registered below a copy from the register of the first executor thereof with
payment order number of this Court, regarding the claim for
interest payment, totaling 10,691 euros, corresponding to interest for the period
from 18-06-2011 to 31-12-2018 for the adjudicated capital and b) or with number
report of the bailiff's forced seizure of real estate
of the Thrace Court of Appeals, based in the Kavala Court of First Instance, and the
number extract of the aforementioned seizure report, pursuant to which
forced execution is expedited against the property referred to in the report
property of the opponent. Finally, part of the legal costs of
opponent, following submission of a relevant request by it (article 191 par. 2)
(Criminal Procedure Code), the objection must be imposed on the defendant due to the partial
victory and partial defeat between the parties in question and depending on the extent of the
of their victory and defeat in the present trial (articles 178 para. 1, 189, 591 para. 1 sub. a)
Code of Civil Procedure), as specifically defined in the operative part of this document.

FOR THOSE REASONS

JUDGES the opposition, opposition of the parties, with the filing report number
litigants.
ACCEPTED partially the present objection.
CANCELLED: a) in part the check for execution dated 09-05-2024 registered
below is a copy of the first executor's register with order number
payment of this Court, as regards the claim for payment of interest,
totaling 10,691 euros, which corresponds to interest for the period from 18-06-2011
until 31-12-2018 for the adjudicated capital and b) the report numbered
forced seizure of real estate by the bailiff of
of the Thrace Court of Appeals, based in the Kavala Court of First Instance, and the
number extract of the aforementioned seizure report, pursuant to which
forced execution is expedited against the property referred to in the report
property of the objector.
CONDEMNS the defendant to pay part of its legal costs.
the amount of which is set at three hundred and eighty (380)
euro.
JUDGED, decided and published in an extraordinary, public meeting, at
its hearing, in Kavala, on 21-022025, without the presence of the parties
and their attorneys-at-law

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Thomas Kalokiris

Supreme Court Lawyer