The Single-member Court of First Instance of Thessaloniki, in a case that our office successfully handled, with the no. 1266/2025 Decision of (Insurance Measures) suspended the execution of a payment order and the enforcement which was expedited by the warrant for execution, accepting that the formal conditions for its issuance were not met and specifically the requirement of written and complete proof of the special succession of the beneficiary of the claim of a foreign company (fund) and active legalization.
The Court ruled that: “After this, the acquisition of the claim by the foreign special purpose company referred to as the beneficiary and the further assignment of its management to the latter by virtue of the .... Business Receivables Management Agreement are not likely and therefore, according to what is understood in the main point, the procedural requirement of proving the active legitimacy of the latter for the issuance of the payment order and the consequent acceleration of the enforcement procedure is missing.
Our Office Associate was present, Dimitra Kevopoulou, Lawyer, DSTH.
The no. is listed. 15215/2024 Decision of the Court of First Instance of Thessaloniki
DECISION 1266/2025
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
SAFEGUARDS PROCEDURE
CONSTITUTED by Judge Ioannis Pallas, President of the Courts of First Instance, who was appointed by lot without the participation of a Secretary.
MEET publicly in its audience in Thessaloniki on November 15, 2024, to try the case
OF THE APPLICANTS: 1) ……….., 2) …….. who were represented by their attorney Dimitra Kevopoulou (AM DSTH 13318), who filed a note.
THE APPLICATION OF: The public limited company with the name "…." and the distinctive title "…," which is based in …. Attica (street …) and is legally represented, with VAT number …., in its capacity as a non-beneficiary party and administrator of the claims of the foreign special purpose company with the name "….", which is based in Dublin, Ireland (street ….), special successor of the public limited company with the name "….", which was represented by the power of attorney of attorney …., who filed a note.
THE APPLICANTS request that their application with General/Special filing number …/4-10-2024 be accepted, the discussion of which was determined for the hearing referred to at the beginning of this.
DURING THE DISCUSSION of the case, the attorneys for the parties orally presented their arguments and requested that they be accepted.
AFTER STUDYING THE LITIGATION
THOUGHT ACCORDING TO THE LAW
The applicants, with their application under consideration, upon due assessment of its content, state that following a request by the defendant in the application, in its capacity as administrator of the claims of the foreign special purpose company with the name "....", the payment order No. ... of the Judge of the Single-Member Court of First Instance of Thessaloniki was issued against them, by which they were ordered to pay her the amount of 28,314.99 euros plus interest and costs for her claim arising from the interest-only loan agreement No. ..., which was drawn up between the original lender, a limited liability company with the name "....", and the first applicant, for whom the second applicant was a guarantor. That on … the defendant delivered to them a copy of the first enforceable copy of the payment order with the …. check for payment, by which they were ordered to pay the amounts referred to therein. That they duly and within the time limit filed the objection with filing number …. against the payment order and the check for payment, by which they request their annulment for the reasons set out in the application. Based on this background, they request that the execution of the said payment order and the check for payment be suspended until a final decision is issued on the objection they filed against them, citing imminent danger and specifically irreparable damage that they will suffer from their execution. With this content and requests, the application for suspension under consideration is competently submitted before this Court to be discussed during the procedure for interim measures (articles 682, 683 par. 1686 et seq. of the Code of Civil Procedure) and a) insofar as it concerns the suspension of the execution of the payment order, it is lawful, based on the provision of article 632 par. 3 sub-paragraph b of the Code of Civil Procedure, since on …. a certified copy of the first enforceable copy of the payment order no. …. was served on the applicants (see the note of the bailiff of the Thessaloniki Court of Appeals district …. on the body of the suspended payment order served on the applicants with the check for payment challenged by ….), while the one with filing number …. opposition was lawfully served on the defendant within the time limit, the application on ….. (see No. …. service report of the bailiff of the Thessaloniki Court of Appeal district with headquarters at the Thessaloniki Court of First Instance ….) and b) insofar as the part concerns the suspension of the execution of the check for payment is lawful, based on the provision of article 938 par. 1 of the Code of Civil Procedure (as in force after its amendment by article 60 of law 4842/2021), which is applicable, because the service of the check for execution was carried out after 10-1-2022. The opposition under article 933 of the Code of Civil Procedure was filed within the time limit, because it does not appear that after the service of the contested check, a seizure report was drawn up and therefore it was filed before the start of the forty-five (45) day period of action under article 934 par. 1, paragraph 1 of the Code of Civil Procedure. On the contrary, the request for the defendant to be ordered to pay the applicants' legal costs is to be rejected as unlawful, because in applications for suspension of execution, the legal costs are always imposed on the applicant for the suspension of execution, regardless of the success or failure of the application (Article 84, paragraph 2, paragraphs b and c of Law 4194/2013). Therefore, to the extent that the application was deemed lawful, its substantive validity must be further investigated.
From the combination of the provisions of articles 623 and 626 of the Code of Civil Procedure, it can be concluded that the basic condition for issuing a payment order is the written proof of the claim, and specifically, the public or private documents submitted must prove the legal facts of the claim, the exact amount due, as well as the identities of the beneficiary and the debtor. In view of the above, for the purpose of the application for the issuance of a payment order, in the event that there has been a change in the subjects of the substantive legal relationship, the applicant must mention the fact that there has been a special succession or other change, on which his active legitimacy is based, while for the success of the application and the valid issuance of the payment order sought therein, written proof of the above succession or change that legitimizes him actively in the exercise of the application is further required and by extension written proof of the applicant's capacity as beneficiary of the claim to which his application relates (see AP 914/2018 TNP Law, AP 782/1994 Hellenic Code 1995, 838, Podimata in the Interpretation of the Civil Procedure Code, Keramea – Kondyli – Nika under article 626 no. 3 p. 1169) If the active legitimacy of the applicant is not proven by the documents submitted, the judge must not issue a payment order, and if despite the lack of this procedural requirement a payment order is issued, then it is annulled after the debtor files an objection, regardless of whether the claim actually exists and it is possible to prove it by other means of evidence (see AP 713/2012, AP 1378/2009 TNP DSA, Efaθ 3467/2023, TNP Law).
In this case, the applicants objecting with the fourth ground of their objection, the investigation of which is admissibly recommended by the Court, not bound by the order of priority chosen by the applicants - objectors (see AP 696/2021, TNP Law), claim, upon due assessment of its content, that the suspended payment order is annulled due to procedural inadmissibility and specifically due to the lack of written proof and with regard to the special succession of the beneficiary of the disputed claim, a foreign special purpose company with the name "...." and as to the active legal standing of the defendant in the application, as the manager of the business claims of the foreign company, which is not legal as a non-beneficiary party in submitting an application for the issuance of the suspended payment order and consequently the acceleration of the enforcement against them. With this content, the reason for the opposition is legal, based on the provisions of articles 623, 626 and 632 of the Code of Civil Procedure and therefore must be further examined as to its substantive validity.
From the documents submitted by the parties, the following facts are presumed: Upon request of the defendant in the application, in her capacity as agent, manager and special attorney of the foreign special purpose company with the name "...", the payment order No. ... was issued by the Judge of the Single-Member Court of First Instance of Thessaloniki, by which the applicants were obliged to pay, jointly and severally, to her the amount of 28,314.99 euros with interest from .... at the contractual default interest rate in force at the time, which exceeds the current contractual rate by 2.5% and with compound interest every six months and the amount of 851.00 euros as legal costs. As stated in the above payment order a) the disputed claim arises from the interest-only loan agreement no. …. with its related additional acts, by which the original beneficiary, a public limited company with the name “…..” granted the first applicant, with the guarantee of the second applicant, a loan of 36,356.00 euros, b) the lending bank transferred the claim to the foreign special purpose company with the name “….” by virtue of the …. contract for the sale and transfer of business receivables, drawn up between them, c) the aforementioned foreign special purpose company initially assigned the management of the claim to the public limited company with the name “….” and subsequently to the defendant the application of a business receivables management company pursuant to the business receivables management agreement dated … and the supplementary agreement dated …., which were drawn up between them. In addition, on …. the defendant in her aforementioned capacity delivered to the applicants a copy of the first enforceable copy of the above payment order with the check dated …. for execution for the total amount of 29,240.99 euros plus legal interest. Furthermore, from the review of the contested payment order it appears that the defendant attached to her application dated …, among other things, certified copies of a) the summary of the ….. Contract for the Sale and Transfer of Business Receivables, which was registered at the Athens Pawnshop with protocol number …. in volume … and number …, by which the sale and transfer of receivables to the aforementioned foreign special purpose company was agreed, b) the summary of the ….. Business Receivables Management Agreement for the interim period, registered with the Athens Pawnshop under protocol number …. in volume …. and number …., by which the acquiring foreign special purpose company initially assigned the management of the receivables of the above securitized portfolio of receivables from loans and credits to the banking company with the name “…..,” c) the summary of the …. Business Receivables Management Agreement, registered with the Athens Pawnshop under protocol number …. in volume …. and number …., by which the …. management agreement between the above two companies, d) the summary of the Business Receivables Management Agreement dated …., registered at the Athens Pawnshop with protocol number …. in volume …. and number …, by which the aforementioned foreign special purpose company assigned the management of the claims of the above securitized portfolio of claims from loans and credits to the defendant in the application “Société Anonyme de la Management des Receivables de Loans and Credits” and e) the summary of the …. Agreement supplementing the …. Business Receivables Management Agreement dated …., registered at the Athens Pawnshop with protocol number …. in volume …. and number …., by which par. d’ of chapter 2 of the publication form of the …. business receivables management agreement dated …. was supplemented. However, it is not likely that the disputed claim from the loan agreement is included in the claims transferred from the banking company with the name "…." to the foreign company with the name "…..", the claims of which are managed by the defendant in the application. This is because in the submitted copy of the extract from the annex to the …. contract of sale and transfer of claims, which was submitted by the defendant in the documents for the issuance of the payment order and registered at the Athens Pawnshop with protocol number ….., the cited page … is not incorporated. of the annex (which allegedly explicitly proves that the disputed claim is included in the transferred claims) nor is any specific reference made to the claim with its explicit recording nor is any other identifying element of the loan agreement indicated (i.e. its number and date of signing, the names of the applicants, their addresses, the delay account and the amount of the loan), so as to suggest that the disputed claim is included in the claims transferred to the foreign company. In addition, no reference is made to the loan agreement nor to the summary of the Business Claims Management Agreement dated …, which was registered with the Athens Pawnshop, while no annex to the said management agreement or an excerpt thereof is provided, from which it can be seen that the disputed one is included among the contracts, the management of which the defendant undertook. After this, it is not likely that the claim will be acquired by the foreign special purpose company referred to as the beneficiary and that its management will be further assigned to it by virtue of the Business Receivables Management Agreement and therefore, according to what is understood in the main point, the procedural requirement of proving the active legitimacy of the latter for the issuance of the payment order and the consequent acceleration of the enforcement procedure is missing. Based on the above, the fourth ground of opposition is likely to succeed, since at the time of the issuance of the payment order, the formal conditions for its issuance were not met, specifically the condition of written and complete proof of the special succession of the beneficiary of the foreign company claim and the active legitimation of the defendant in the application for its issuance, and therefore the payment order No. ….. of the Judge of the Single-Member Court of First Instance of Thessaloniki is annulled, while the examination of the other grounds of opposition concerning the payment order and the order for execution from …. is unnecessary. In addition, there is also the element of irreparable harm to the applicants, since from the enforceability of the title and the commencement of the enforcement proceedings against them, they are at risk of paying their debt (voluntarily or forcibly), without it being likely that they have a legal obligation to do so (see MonPrAθ 4206/2024, MonPrAθ 1502/2024, TNP Law). In light of the above, the application must be accepted as substantively well-founded and the suspension of execution of: a) no. ….. payment order of the Judge of the Single-Member Court of First Instance of Thessaloniki and b) the forced execution which is expedited by the check from ,,,,, for execution of the below certified copy of the first enforceable inventory of the above payment order, until the issuance of a final decision on the objection filed with number ……. before the Single-Member Court of First Instance of Thessaloniki (Special Procedure for Property Disputes). Finally, the legal costs of the defendant must be imposed on the applicants according to the more specific provisions of the operative part.
FOR THOSE REASONS
JUDGES opposition of the parties.
ACCEPTED The application.
SUSPENDS the execution a) payment order No. ….. of the Judge of the Single-Member Court of First Instance of Thessaloniki and b) the forced execution which is expedited by the order dated ….. for execution of the following certified copy of the first enforceable inventory of the above payment order, until the issuance of a final decision on the objection filed with number ….. before the Single-Member Court of First Instance of Thessaloniki (Special Procedure for Property Disputes).
ORDERS the applicants to pay the defendant's legal costs, the amount of which is set at two hundred (200.00) euros.
JUDGED and decided on January 23, 2024
THE JUDGE
PUBLISHED at an extraordinary public meeting in its auditorium, in Thessaloniki, on January 23, 2024, in the presence of the Secretary …..
and was considered the same day
Thomas Kalokiris
Supreme Court Lawyer
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