The following is the Decision of the Naoussa Magistrates' Court dated January 10, 2020 and No. 11/2020, on yet another case successfully handled by our office, which set zero payments to the applicant and exempted all of his other real estate and movable property from the sale.
Specifically, he set zero payments against debts of 165,669.97 euros, judging that the relationship between his liquidity and his debts is negative in the sense that after deducting the amount required to cover his monthly needs, his remaining liquidity does not allow him to meet his debts.
Therefore, the total "haircut" amounted to 165,669.97 euros, covering 100% of the debts!
The following is an excerpt from the Decision (edited to remove the names of the parties)
DECISION NUMBER: 11/2020
THE COURT OF PEACE OF NAOUSSA
IT WAS ESTABLISHED by Justice of the Peace Cornelia Hatzipanayiotou, who was appointed by an act of the director of the Veria Court of First Instance, with the collaboration of the Secretary Rodoula Tsiousi.
SAID publicly in its courtroom in Naoussa on April 11, 2019, to try the following case between:
Applicant: ……, who appeared in Court with his attorney Thomas Kalokiris (Reg. No. 11982, Thessaloniki City Council).
Defendants of the application: 1. The banking company with the name "National Bank of Greece S.A.", headquartered in Athens, Aiolou no. 86 and legally represented, which did not appear in Court, nor was it represented by anyone. 2. The banking company with the name "Piraeus Bank S.A.", headquartered in Athens, Amerikis no. 4 and legally represented, which was represented in Court by its attorney-at-law ……….. 3. The Independent Authority of Public Revenue (A.A.D.E.), legally represented by the Head of the Tax Office of Veria, which was represented by a statement by the Head of the Tax Office of Veria Dimitra Stamou in accordance with article 20 par. 6 of the law. 3086/2002. 4…….. who did not appear in Court, nor was he represented by anyone. 5………..who did not appear in Court, nor was he represented by anyone. 6……..who did not appear in Court, nor was he represented by anyone.
SUBJECT OF CASE: The application dated 3-12-2018 and with cat. no. 145/5-12-2018 for judicial regulation and exemption from debts under Law 3869/2010, of voluntary jurisdiction, for the discussion of which the hearing referred to at the beginning was set.
STUDY THE CASE AND THINK ABOUT THE LAW
[….] With the present application, as it was admissibly completed (224, 236, 741, 745 and 751 of the Code of Civil Procedure), with an oral statement by the applicant's attorney, which was recorded in the minutes of the same number as this one, but also with his proposals, which were legally filed, the applicant, citing lack of bankruptcy capacity, permanent inability to pay his overdue financial debts to his creditors, mentioned in the application, and setting out his family and financial situation, requests that the plan for settling his debts included in the application be ratified or amended in accordance with the provisions of art. 7 of Law 3869/10 and, in the alternative, that the settlement of his debts be ordered, with the aim of partially relieving him of them and excluding them from the sale. other assets. The application is duly brought for discussion before this court, in the procedure of voluntary jurisdiction (article 3 of law 3869/2010) and for its admissibility a) the procedure provided for in article 5 of law 3869/2010 was observed and in particular the applicant notified within fifteen days from the filing of the application a copy of the application with an act of designation of court and a summons for it to his defendant creditors and to his co-debtors and guarantors ……. (see the service reports with numbers 11062Β/17-12-2018, 11069Β/17-12-2018, 11070Β/17-12-2018, 11075Β/17- 12-2018, 11072Β/17-12-2018 and 11074Β/17-12-2018 of the bailiff of the Thessaloniki Court of Appeal with seat at the Veria Court of First Instance Antonios Kazas and the service report with number 9919Β/13-12-2018 of the bailiff of the Athens Court of Appeal with seat at the Athens Court of First Instance Giannoula Louka Vienna, b) no other application of the applicant for the settlement of his debts is pending in this Court or another Court of Justice of the Peace of the country, nor has a decision been issued for a settlement with a discharge from his debts, as established after an ex officio inspection pursuant to art. 13 par. 2 of the same above law and by the certificate numbered 1397/16-7-2019 of the Court of Justice of Athens. Furthermore, the applicant's solemn declarations dated 3-12-2018 regarding the correctness and completeness of the statements of his assets and income, his creditors and his claims in terms of capital, interest and expenses, as well as regarding the non-transfer of real rights over his real estate during the last three years, that he does not have bankruptcy capacity and consents to the lifting of banking secrecy for the reasons provided by law, as well as the other documents specified in par. 1 and 2 of article 4 of Law 3869/2010. After the receipt and registration of the application by the Secretariat of this Court and after it was established that there were no formal deficiencies, a file was opened for the maintenance of the documents and the hearing referred to at the beginning of this was set as well as a hearing for the discussion of the ratification of the pre-trial settlement, which failed, while the interim order dated 7-3-2019 and numbered 17/2019 was granted. Also, the application is set, since the applicant includes in his application the elements of art. 4 par. 1 of Law 3869/2010 as well as the conditions of art. 1 of Law 3869/2010 and is legal, based on the provisions of articles 1, 4, 5, 8, 9 and 11 of Law 3869/2010, as amended by the articles of the Ministry of Finance and Economic Development, Article 4 of Article 2 of Law 4336/2015 (Government Gazette A 94/14.8.2015), which covers, in accordance with paragraph 5 of Article 2 of the Ministry of Finance and Economic Development, Article 4 of Article 2 of Law 4336/2015 (Government Gazette A 94/14.8.2015), applications submitted after its entry into force, and by article 14 of Law 4346/2015, which amended the conditions for the exemption from the sale of the debtors' main residence, for the period from 1-1-2016 to 31-12-2018 and Law 4549/18 (Government Gazette A'105/14-6-2018).
[….] In view of the fact that no judicial settlement was reached between the applicant and his creditors, on the specified validation date, its substantive validity must be further investigated after payment of the legal fees.
[…]The second defendant creditor, “Piraeus Bank S.A.”, by a statement of its attorney, made in the hearing during the hearing, was recorded in the same numbered minutes of this hearing and was specialized in its written proposals submitted during the hearing and the Greek State, with the numbered prot. 15239/2019 statement in accordance with article 20 par. 6 of law 3086/2002, denied the application and requested its rejection. Furthermore, “Piraeus Bank S.A.” claimed that the applicant fraudulently became permanently unable to pay his overdue financial debts, as he knew when he assumed the loan obligations that he would not be able to meet them. This claim constitutes a legitimate objection and will be examined in substance below. He also proposed the claim that the applicant is abusively exercising his right to be subject to the regulations of Law 3869/2010, as he maintains three vehicles and continues to cultivate a field of his property even though the income from this activity is low, while at the same time he has borrowed large amounts from his creditors. However, these claims - even if true - do not constitute the claim under Art. 281 of the Civil Code, an objection is considered to be rejected, because the applicant's choice to be subject to the regulations of the law constitutes his legal right in a modern state of law that requires his economic and social liberation in order to integrate into social and economic activity with a view to the general interest (Ath. Cretan Law Regulation of the debts of over-indebted natural persons and other provisions - Ed. 2010, Introduction App.) and this choice alone does not establish abuse. The settlement plan is determined at the free discretion of the debtor and constitutes a proposal to the creditors, while it is not binding on the Court, which will freely assess this proposal based on the relevant elements, the lessons of common experience and the living conditions and needs of the applicant, and in case it deems this unreasonable and unacceptable, it intervenes and shapes it by deviating from what was requested (see I. Venieris, Application of Law 3869/2010 for over-indebted natural persons, 2nd edition, p. 179). Finally, weakness does not necessarily constitute an extraordinary event, but also other factors, such as failure regarding the borrower's financial capabilities, unfortunate planning, aggressive credit promotion practices, income constraints, high interest rates). Furthermore, it was alleged that the applicant violated the duty of honest declaration regarding his financial situation, as he failed to mention the allowance he receives from the OGA for his minor children and also did not mention that in order to secure the loan agreement no. 0010-1212-00002605515 (former ATE 153/1999) he has registered a mortgage on a field owned by him. This claim is legal (art. 10 par. 1 of Law 3869/2010) and will be examined further on its merits.
[…] From the in-person examination of the applicant in the hearing of this Court, which is contained in the minutes of the same number as these, from the documents admissibly and legally presented by the parties, useful also for the collection of judicial evidence, from the confessions deduced from all the allegations of the parties and from what is known to all, the following essential facts were proven: The applicant, born in the year ……., is a widower, as in the year …… his wife, who was suffering from cancer, died at the age of 36 and he is the father of four minor children. His income comes from agricultural activity, which at this point in time is not profitable, from the child benefit of 840 per two months, and from assistance from his retired parents with whom he lives in a property owned by his father located in ……… Imathia. According to the tax returns he submitted, his total declared family income, including the independently taxable amounts, was: for the financial year 2004 (fiscal year 2003) 19,663.69 euros for the applicant and zero for his wife, for the financial year 2005 (fiscal year 2004) 15,730.71 euros for the applicant and zero for his wife, for the financial year 2006 (fiscal year 2005) 18,476.27 euros for the applicant and zero for his wife, for the financial year 2007 (fiscal year 2006) 18,375.92 euros for the applicant and zero for his wife, for the financial year 2008 (fiscal year 2007) 23,321 euros for the applicant and zero for his wife, for the financial year 2009 (fiscal year 2008) 40,280.36 euros for the applicant and 3,212.99 euros for his wife, for the financial year 2010 (fiscal year 2009) 23,217.52 euros for the applicant and 3,111.48 euros for his wife, for the financial year 2011 (fiscal year 2010) 23,221.40 euros for the applicant and 3,192.30 euros for his wife, for the financial year 2012 (fiscal year 2011) 6,644.53 euros for the applicant and 3,158.09 euros for his wife, for the financial year 2013 (fiscal year 2012) 6,430.10 euros for the applicant and 2,892.75 euros for his wife, for the financial year 2014 (fiscal year 2013) 5,860.61 euros for the applicant and zero for his wife, for the tax year 2015 10,267.02 euros, for the tax year 2016 4,315.89 euros and for the tax year 2017 4,356.48 euros. Furthermore, by virtue of the no. 14458/1999 sale contract of the notary of Naoussa Zoi Zachariadou Doldouri, the applicant is the owner of the no. …… field of area 17,875 sq.m. located at the location ……. in the rural area ……. of Imathia. Furthermore, the applicant owns a) the vehicle with registration number ……. car brand SEAT CORDOBA, 1390 cc, year 1her 2004, value 1,000 euros, b) the commercial van with registration number …….., MITSUBISHI brand, year 1her 2008, worth approximately 2,500 euros, which he uses in the context of his work and c) the commercial truck with registration number ………, manufactured by TEOKAR SA, year 1her 1996, which is also used by the applicant for agricultural work. In addition, he does not own any other movable or immovable property. The living expenses of the applicant's family, taking into account reasonable living expenses, which, however, only serve as guidelines and cannot produce a binding legal act for the Court (see, I. Venieris- Th. Katsas, Application of Law 3869/2010 on Overindebted Natural Persons, 3rd Edition, p. 498), amount to approximately 650 euros. Furthermore, in a period prior to the year from the filing of the legal application, the applicant assumed the following debts towards his creditors, respectively, which, by law, are considered overdue upon notification of the application and are calculated at their current value at the time of notification of the application, with the exception of loans that are secured in rem, the interest on which continues at the interest rate of the current debt until the time of issuance of the decision (article 6 par. 3 of law 3869/10): A] to the "National Bank of Greece S.A." he owes, 1) from the housing loan agreement no. 4213899497 the amount of 28,830.10 euros 2) from the agreement no. 4239039100 consumer loan agreement the amount of 17,867.41 euros and c) from the credit card with account number 5278900086377442 the amount of 0.22 euros (see the debt certificate dated 18-10-2018), and B] to "PIRAEUS BANK SA" owes 1) from the agricultural loan agreement with identification number 10121200002605515 the amount of 20,888.56 euros, 2) from the consumer loan agreement with identification number 10159600002892792 the amount of 19,506.58 euros 3) from the consumer loan agreement with identification number 10224400000006963 the amount of 21,042.22 euros, 4) from the agricultural loan contract with identification number 10282800000003803 the amount of 10,286.73 euros, 5) from the housing loan contract with identification number 10121200002672238 the amount of 21,987.52 euros and 6) from the housing loan contract with identification number 10121200002672238 the amount of 25,260.63 euros (see the debt certificate dated 4-10-2018). Therefore, the total debts of the applicant amount to the total amount of 165.669,97 euro.
The applicant was initially consistent with his above-mentioned loan obligations, as the income he earned from his work was clearly higher, as is also evident from the submitted tax returns. Moreover, the illness and death of his wife significantly burdened the financial situation of the wider family, while in addition the applicant took on the sole responsibility of raising his children. Consequently, due to the economic crisis due to which his income was significantly reduced, the above-analyzed unexpected problems of his family, the unforeseen increase in the cost of living and the increase in direct and indirect taxation, the repayment of his loans became impossible. As a result of the above, the relationship between his liquidity and his debts during the current period is negative in the sense that after deducting the amount required to cover his monthly needs, his remaining liquidity does not allow him to meet his debts. This relationship is not expected to improve, at least in the near future, since the monthly needs of his family are not expected to be limited, while at the same time his loan obligations are constantly increasing due to the burden of the loan agreements with default interest. Under the above facts, it is proven that the applicant, who does not have bankruptcy capacity, has fallen, without malice, into a permanent inability to pay his financial debts. The plan for arranging his debts proposed by him was not accepted by his creditors and consequently the applicant meets the conditions for his inclusion in the regulation of Law. 3869/10 and the conditions for the settlement of his debts by the Court, pursuant to art. 8 et seq. of L. 3869/2010, are met, as there are no disputed claims. Furthermore, it is concluded that the applicant does not have assets to satisfy the defendants to be liquidated. In particular, taking into account the age of the applicant's vehicles and their usefulness in his work and travel, in combination with the downward trends prevailing at this time in the used vehicle market, they are not considered appropriate for sale, because they are not going to generate purchasing interest, nor will they yield a significant price to satisfy the creditors, taking into account the costs of the sale procedure (liquidator's fee, publication costs, etc.). Therefore, it is considered that the order pursuant to art. 9 par. 1 of Law 3869/10 their sale. Also, the above field which constitutes the applicant's real estate is necessary for the livelihood of his family. Moreover, the downward trends prevailing at this time in the real estate market should be taken into account, so in combination with the above reasoning it is considered that its sale under article 9 par. 1 of Law 3869/10 should not be ordered. In this case, due to the exceptional circumstances facing the applicant, which focus at the present stage on his unfavorable financial situation due to the reduction in income from his work and the resulting lack of income to cover the basic living needs of his family, as their living expenses exceed his income, the Court should, within the scope of its power, in application of the provision of art. 8 par. 5 of Law 3869/10, in view of his proven inability to pay any amount at present against his debts, to set zero payments for a period of three years, namely 36 months [art. 8 par. 2 of Law 3869/2010, as replaced by par. 17 of article 1 of YPOPAR.A.4 of article 2 of Law 4336/2015 (ΨΕΚ A 94/14-8-2015, which covers applications submitted after its entry into force) and Law 4549/2018] which will begin on February 1, 2020. The Court, however, considers that it should also set a new hearing to examine the case of redetermination of the monthly payments, given that the applicant's financial situation may improve, taking into account his age and the possibility of increasing his income from his agricultural activity or finding another job. The applicant is reminded that if his income improves, during the period between the date of the hearing for the investigation of the case of redetermination of the monthly payments, the monthly installments may be adjusted by reforming the decision pursuant to article 8, paragraph 4 of Law 3869/2010, as debtors pursuant to article 10, paragraph 1, subparagraph a' of the same aforementioned law are obliged to submit a truthful declaration during the period of adjustment of their debts.
Consequently, the application should be partially accepted as well-founded in its substance and the applicant's debts should be settled, with respect to his creditors included in the settlement, with the exception of the sale of his assets, in accordance with what is specifically defined in the operative part. Finally, no provision for court costs will be included as defined in art. 8 par. 6 of L. 3869/2010.
FOR THOSE REASONS
JUDGES in the absence of the first defendant and the co-debtors and guarantors and in the absence of the other parties
REJECTS everything he deemed unacceptable.
The application is partially GRANTED.
REGULATES the applicant's debt to his defendant creditors, which is included in the arrangement under art. 8 par. 2 of law 3869/2010, for three years, i.e. for 36 months, specifying zero monthly payments to the defendant, starting from 1-2-2020.
A hearing is scheduled for the investigation of a case of redetermination of monthly payments, on 19-11-2020 in the courtroom of this Court.
EXCLUDES from the sale a) the numbered……. field with an area of 17,875 sq.m. located at the location “……” in the rural area of ……. Imathia b) the SEAT CORDOBA car with registration number ………, c) the MITSUBISHI commercial van with registration number ……. and d) the commercial van with registration number …….
JUDGED, decided and published in Naoussa on 10-01-2020 in an extraordinary and public session in the audience of all the parties and their attorneys.
THOMAS KALOKYRIS
LAWYER MDE
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