With the no. 170AM/2024 Decision of it Single-member Court of First Instance of Syros, in a case successfully handled by our office, accepted the objection under article 973 of the Code of Civil Procedure against a declaration of acceleration of the auction against our client and canceled the auction.
The Court ruled that " there is a circumvention of article 966 par. 2 of the Code of Civil Procedure (as in force after its amendment by Law 4842/2021), which stipulates that the second auction is repeated at the same price as the first bid (in this case, that is, at that of €320,000.00, as defined/corrected by the above-mentioned, published and posted on the auction publications website of the Judicial Publications Bulletin of the Electronic National Social Security Agency, decision no. 30/AM/2023 of the Single-Member Court of First Instance of Syros). This circumvention, which is correctly alleged with the objection of article 973 par. 6 of the Code of Civil Procedure (see Nikas, Law of Compulsory Enforcement, vol. 2, 3rd ed., 2024, par. 48, p. 462, no. 57), it is likely that it will cause significant procedural harm to the opponent, as set out in the opposition[…]”
The following is the Decision No. 170AM/2024 of the Court of First Instance of Syros
170AM/2024
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF SYRUS
(Safeguard Measures)
ASSEMBLED by Judge Sotiris Malikentzos, First Instance Court, who was appointed by the President of the First Instance Courts of Syros.
MEETING publicly in its hearing on June 26, 2024, without the participation of a Registrar, to try the case between:
OF THE INTERVIEWER: ……………………of …………………….., resident of Azolimnos, Syros, with Tax Identification Number ………………………………, who was represented by the power of attorney of his lawyer, ……………………………….(AM/DSS …….), who filed a note.
THE BREAKING: A public limited company with the name <<……………………………………………….>>, based in ………………………..(street ………………………., no……. and …………….), with VAT number ………………………….., as legally represented, acting in this case, as a non-beneficiary and non-obligated party and as administrator of the claims of the company with the name <<………………………………>>, based in Dublin, Ireland (street ………………., no. …., …………… floor, IFSC, Dublin…….), which has become the special successor of the public limited company with the name <<…………………………………..>>, based in Athens (street ………………………… no. ……), with VAT number ……………………… and legally represented, which was not present.
The opponent requests that his opposition be accepted as of 19.6.2024, which was filed with the Secretariat of this Court, with the filing report number …./21.6.2024 and was determined to be discussed during the hearing referred to at the beginning of this.
During the discussion of the case, the attorneys for the parties developed their arguments.
AFTER STUDYING THE LITIGATION
THOUGHT ACCORDING TO THE LAW
According to the service report number ……/21-06-2024 of the bailiff of the Attica Region, based at the Athens Court of First Instance, …………………………………. (which is legally invoked and presented by the opponent), a certified copy of the contested opposition, with the -under it- act of determining the date of trial for the date referred to at the beginning of this decision, as well as a summons for a hearing at the above-specified hearing, was served by the opponent on the defendant of the opposition, according to the legal formalities (articles 122, par. 1, sub. c', 129, 139 of the Code of Civil Procedure) and within the legal deadline, namely the time period (in this case 24 hours), which the Judge of the Single-Member Court of First Instance of Syros determined to be the period between the service of the summons and the hearing (article 686 par. 2 of the Code of Civil Procedure). However, during the hearing of the case in question, the defendant did not appear in court, despite her legal summons above, and therefore she must be tried in absentia. The hearing, however, must proceed as if all parties were present (article 686 par. 7 of the Code of Civil Procedure, as added by articles 45 and 120 of Law 4842/2021).
According to the provisions of article 966 of the Code of Civil Procedure, as replaced by article 67 of law 4842/13.10.2021: <<1. If no bidders appear or no bids are submitted, the thing being auctioned is awarded at the price of the first bid to the person in whose favor the execution was made, if he so requests. The urgent creditor submits a relevant application electronically, after the deadline of par. 6 of article 959 has passed and before the start of the auction, to the auctioneer, who then posts it in the electronic auction systems. 2. If the application of par. 1, the auction is repeated with the same first bid price and on a date set by the auction official, within forty (40) days of the relevant publication being posted on the respective auction publication websites of the Judicial Publications Bulletin of the Electronic National Social Security Agency (e-EFKA) and ELSYPLEIS (e-auction). 2A. Although the auction of par. 2 is unsuccessful, a new one is held with a first bid price equal to eighty percent (80%) of the initially set price and on a date set by the auction official, within thirty (30) days of posting the relevant publication on the respective auction publication websites of the Judicial Publications Bulletin of the Electronic National Social Security Agency (e-EFKA) and ELSYPLEIS (e-auction). 2B. In the event that the auction of par. 2A is unsuccessful, the auctioneer shall repeat it within thirty (30) days, with a first bid price equal to sixty-five percent (65%) of the initially set price, by posting it on the respective auction publication websites of the Judicial Publications Bulletin of the Electronic National Social Security Institution (e-EFKA) and ELSYPLEIS (e-auction). 3. Even if the new auction was unsuccessful, the competent court of article 933, which judges according to the procedure of articles 686 et seq., upon application of anyone with a legitimate interest, may lift the seizure or order a new auction to be held later with the same price according to par. 2B or even a lower first bid price. 4. …>>. Furthermore, with article 176 of law 4855/12.11.2021 (Government Gazette A' 215/12.11.2021), case g' of par. 6 of article 116 of law 4842/13.10.2021 is replaced, which now stipulates that (g.) << Article 966 of the Code of Civil Procedure, as amended by article 67 hereof, applies to auctions, initial or repeated, the holding of which has been or will be determined at a time subsequent to the entry into force of this law, regardless of the time at which the initial auction was determined>>. The above law 4842/2021 is in force from 1.1.2022 (article 120 of the same Law). The manner of initiating the procedure for repeating the auction and the starting point of the forty-day period was not, nor is it, specifically defined in article 966 of the Code of Civil Procedure. However, in this case too, the initiation of the procedure for repeating the auction is carried out, in accordance with the analogous application of article 973 par. 1-3 of the Code of Civil Procedure, at the initiative of the expediting creditor (see MPZakynth 84/2021, MPHalc 24/2022, TNP LAW, see also Kiouptsidou-Stratoudaki, The most important recent amendments to the General Part of the Law of Forced Execution and the funds for the satisfaction of monetary claims through the seizure of movable and immovable property, Hellenic 1, 2022, p. 48 and Vezyrtzi, The electronic forced auction according to the Code of Civil Procedure, 2023, p. 131, no. 202), who submits to the notary a relevant statement, a relevant act drawn up by the notary, and from this declaration, the deadlines set out in the provisions of article 966, paragraphs 1, 2, 2A and 2B of the Code of Civil Procedure regarding the time of the new auction begin, and the postings by the auctioneer must be made within the five-day deadline of article 973, paragraph 1 of the Code of Civil Procedure, also amended by law 4842/2021, while the issuance of a new extract of the seizure report is not required. This position, regarding the manner of initiating the procedure for repeating the auction, finds support in the provisions of articles 106 and 927 of the Code of Civil Procedure, according to which the forced execution is carried out with the diligence of the person who has the right to carry it out, who also gives the relevant order to the enforcement bodies, i.e. this provision establishes a fundamental rule of the procedural system, according to which the initiation of the forced execution procedure is carried out only upon the request of the creditor who has filed the application and progresses from stage to stage only after actions by the person who has filed the application (see Efath 2700/2021 TNP LAW of the Hellenic Republic, 4214/2023 TNP LAW). Moreover, from the aforementioned provisions, 3rd page of no. 170AM/2024 decision of the Single-Member Court of First Instance of Syros (Precautionary Measures) in combination with that of article 159 of the Code of Civil Procedure, it follows that the violation of the above procedural provisions entails invalidity only if, in the judgment of the court, it caused damage to the person against whom the enforcement is directed, which cannot be remedied otherwise than by declaring the invalidity, since the law does not explicitly require compliance with the said provisions under penalty of invalidity. The declaration of invalidity presupposes an invocation by the defendant of the enforcement of the procedural defect, as well as the damage (see MPThessaloniki 4214/2023 TNP LAW). In any case, any circumvention of article 966 of the Code of Civil Procedure and any irregular declarations by the party making the request, will result in the application of article 973, paragraph 6 of the Code of Civil Procedure, and possibly the objection of article 933 of the Code of Civil Procedure (in the event of an auction), exercised within the deadline of article 934, paragraph 1, b. Code of Civil Procedure (see Nikas, Law of Enforcement, vol. 2, 3rd ed., 2024, par. 48, p. 462, no. 57 and Kiouptsidou-Stratoudaki, The most important recent amendments to the General Part of the law of Enforcement and the chapters for the satisfaction of monetary claims through the seizure of movable and immovable property, Hellenic Journal 1, 2022, p. 50).
With his objection under consideration, as its content is assessed by the Court, the objector states that with the no. ……../28.05.2024 declaration of acceleration of the auction of the Notary of Syros, …………………………. which was posted on the auction publications website of the Bulletin of Judicial Publications and served on him on 31.05.2024, the defendant has expedited again, for 04.07.2024, the auction against the seized (by virtue of the report of forced seizure of the bailiff of the Aegean Court of Appeal, ……..), analytically described in the objection, of his property, located in the location <<Azolimnos>> of the Municipal District of Manna of the Municipality of Syros-Ermoupolis, after its cancellation on the appointed date of 25.10.2023, due to lack of bidders. That the first bid price was initially set at €290,000.00. However, prior to the above cancellation of the auction, he had filed a <<corrective>> objection under article 954, paragraph 4 of the Code of Civil Procedure, with filing number …../2023, against the above seizure report and its excerpt, on which the decision No. ……/AM/16.10.2023 of the Single-Member Court of First Instance of Syros was issued, according to which his above objection was partially accepted and the correction of the above first bid price to the amount of €320,000.00 was ordered. That the above auction, scheduled for 25.10.2023, was cancelled due to lack of bidders and that with the suspended declaration of acceleration-continuation of the auction, it is accelerated again for 04.07.2024, however illegally with a first bid price of the above amount of €290,000.00 and not that of €320,000.00, as set out in the above decision of this Court. For this reason and based on this history, as set out in more detail in the opposition, it requests, citing procedural damage, that the aforementioned declaration of acceleration of the auction of the Notary of Syros, ………………, be annulled, following the posted excerpt thereof and that the defendant be ordered to pay its legal costs.
With this content and requests, the objection under consideration, with filing report number 515/21.06.2024, is competently introduced before this Court, as competent in terms of substance and place (see articles 973 par. 3, 6 and 933 par. 1,2), in the procedure for interim measures (686 et seq. Code of Civil Procedure). Furthermore, the objection under consideration under article 973 par. 6 Code of Civil Procedure must be further investigated as to the legal and substantive validity of its grounds.
With the sole ground of the objection under consideration, the objector states that the contested acceleration event (pursuant to article 966 par. 2 of the Code of Civil Procedure), sets again as the first bid price of his property under auction, an amount of €290,000.00, in apparent violation of decision no. 30/AM/2023 of the Single-Member Court of First Instance of Syros, which had corrected the price of the first bid to €320,000.00. That from the above violation of the above decision, procedural damage is suffered, as his real estate may be awarded at a price reduced by €30,000.00 from that which had been recognized by the above Court. This ground is definite and lawful, based on the provisions of articles 159 par. 3, 954 par. 4, 966 para. 2 and 973 para. 6 of the Code of Civil Procedure, as specifically set out in the main point no. II of this judgment and therefore it must be further investigated on its merits.
From all the legally submitted and invoked documents presented and invoked by the opponent, the following facts were presumed: With the no. ………../28.05.2024 declaration of acceleration of auction of the Notary of Syros, …………, (pursuant to article 966 par. 2 of the Code of Civil Procedure, by which the defendant declares that she wishes the auction to continue) which was posted on the auction publication website of the Bulletin of Judicial Publications and served on the opponent on 31.05.2024, the defendant accelerates again, for 04.07.2024, the auction against the seized (by virtue of the no. ………'/09.03.2023 report of forced seizure of the bailiff of the Aegean Court of Appeal, ……………), analytically described in the opposition, of the property located at the <<Azolimnos>> location of of the Manna Municipal District of the Municipality of Syros-Ermoupolis, after its cancellation on the specified date of 25.10.2023, due to lack of bidders. The first bid price was initially set at €290,000.00. However, the objector, prior to the above cancellation of the auction, had filed a <<corrective>> objection under article 954 par.4 of the Code of Civil Procedure, with filing number ………./2023, against the above seizure report and its extract, on which the decision no. ………/AM/16.10.2023 of the Single-Member Court of First Instance of Syros was issued, according to which his above objection was partially accepted and the correction of the above first bid price to the amount of €320,000.00 was ordered. The above decision was published and posted on the auction publication website of the Judicial Publications Bulletin of the Legal Insurance Sector of the Single Fund for the Self-Employed on the same day (16.10.2023, within the deadline of article 954 par. 4, last paragraph of the Code of Civil Procedure) with a Unique Judicial Decision Code: ……….. However, the above auction, scheduled for 25.10.2023, was canceled due to the lack of bidders. Furthermore, with the suspended declaration of acceleration-continuation of the auction, the above auction is accelerated again for 04.07.2024, however, with a first bid price of €290,000.00 and not €320,000.00, as set by the above decision of this Court. In this case, there is a circumvention of article 966 par. 2 of the Code of Civil Procedure (as in force after its amendment by Law 4842/2021), which stipulates that the second auction is repeated at the same price as the first bid (in this case, that is, at that of €320,000.00, as defined/corrected by the above-mentioned, published and posted on the auction publications website of the Judicial Publications Bulletin of the Electronic National Social Security Agency, decision no. 30/AM/2023 of the Single-Member Court of First Instance of Syros). This circumvention, which is correctly alleged with the objection of article 973 par. 6 of the Code of Civil Procedure (see Nikas, Law of Enforcement, vol. 2, 3rd ed., 2024, par. 48, p. 462, no. 57), is likely to cause significant procedural harm to the opponent, as set out in the opposition, as there is a risk that his real estate will be auctioned at a price lower by €30,000.00 (€320,000.00-€290,000.00) than the first offer price set by this Court in its above decision. Consequently, the ground for opposition in question should be accepted as substantially well-founded.
Following this, the sole ground for objection being accepted, the declaration no. ………../28.05.2024 of the acceleration-continuation of the auction of the Notary Public of Syros, …………………………………, must be annulled, with the excerpt posted thereon, and the legal costs of the opponent must be imposed on the defendant against whom the objection was filed, due to its defeat (176, 191 par. 2 of the Code of Civil Procedure), as specifically provided in the operative part.
FOR THOSE REASONS
HE JUDGES The opposition was filed in the defendant's absence.
ACCEPTED the objection.
CANCELLED the declaration no. ……………/28.05.2024 of the acceleration-continuation of the auction of the Notary of Syros, ………………., following the posted excerpt thereof.
CONDEMNING the defendant to pay the opponent's legal costs, which he sets at the amount of three hundred and fifty (350.00) euros.
JUDGED, was decided and published in an extraordinary public session in its courtroom in Syros, without the presence of the parties and their attorneys, on 26.06.2024, and with the collaboration, for the publication, of the secretary 26-06-2024.
THE JUDGE THE SECRETARY
Thomas Kalokiris
MDE lawyer
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