Cancellation of the FUND Execution Order of 1 million euros – The 1774/2024 Decision of the Court of First Instance of Thessaloniki

With the no. 1774/2024 Decision of the Single Member
Court of First Instance of Thessaloniki (property dispute procedure), in a case that our office successfully handled, the Court accepted the Objection according to article 933 of the Code of Civil Procedure and ordered the cancellation of checks to be executed and the attached copy of the payment order, accepting our objection regarding the vagueness of the funds described in the above checks and ordering the defendant to pay the legal costs of the objectors, which it set at the amount of 11,940.00 euros.

In particular, the Court accepted that: < …… the last ones they do not contain all the legally required elements, as they do not contain, as explained above, a separation of the debt by capital,
interest and costs, unless they only mention a total amount of 1,117,076.02 euros,
which the objectors are ordered to pay to the defendant, without any
separation and identification of the individual funds from which it is composed,
such as capital, interest and expenses, and in the event that this total
Interest has also been incorporated into this item, without further mention of the type of interest in question.
interest (legal or contractual) and the period of time to which they relate,
although, as noted above, these (orders) are ordered
objectors to pay the above total amount with legal interest, lack of which
causes procedural harm to the objectors, since the latter are not in a position to
to check for any inaccuracy of funds or incorrect calculation or illegal
of interest and expenses, so that they can oppose their defense. >>.

The body no. is listed. 1774/2024 Decision of the Single-Member Court of First Instance of Thessaloniki.

DECISION 1774/2024
(Opposition filing number? ………….)

THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
SPECIAL PROCEDURE FOR PROPERTY DISPUTES

CONVEYED by Judge Alexandra Giannakidou, First Instance Judge, who was appointed by the President of the Three-Member Board of Directors of the Court of First Instance of Thessaloniki, and by the Secretary Amalia Sofianidou, MEETING publicly in its hearing on January 22, 2024, to judge the opposition with filing number 25587/21697/07.12.2023, with the object of the annulment
enforcement actions.

DEFENDANTS: 1) the public limited company with the name <<……….>> 2) the ………………..and 3) the………, who were present during the discussion of the case through the attorney-in-fact of the Thessaloniki Bar Association Thomas Kalokyris, who filed motions.
THE INTERRUPTION IS: …………………
DURING TODAY'S public hearing of the case, the attorneys for the parties requested that what is stated in the minutes and in their motions be accepted.

AFTER STUDYING THE LITIGATION
CONSIDERED ACCORDING TO THE LAW

With the present opposition, the opponents request, for the reasons specifically stated
report, the cancellation of the checks dated 15.11.2023 for payment against the deposit
a certified copy of the payment order no. …./2017 of the Judge of
Single-member Court of First Instance of Thessaloniki, by virtue of which the case is being expedited against
their judicial enforcement by the defendant, acting in its capacity as
administrator of the claims of the aforementioned foreign special purpose vehicle,
in satisfaction of the latter's claim, for which the above order has been issued
payment, as well as the conviction of the defendant or the opposition to their legal actions
costs. With this content and requests, the present objection is admittedly entered
before this Court, which has jurisdiction as to the matter and place, since
the enforceable title was not issued by the Justice of the Peace, but by the Court of
place of general jurisdiction of the parties involved, given that it does not appear that after the
The service of the aforementioned check was followed by other acts of coercion.
execution (art. 933 par. 1 subs. a and 3, 584 and 22 of the Code of Civil Procedure), to be discussed during the
this special procedure for property disputes under articles 614 et seq. of the Code of Civil Procedure
(art. 937 par. 3 of the Code of Civil Procedure), and was filed within the time limit before the commencement of the
provided for by the provision of article 934 par. 1 letter a of the Code of Civil Procedure), was exercised
within the deadline before the start of the period provided for by the provision of article 934 par.
1 item a of the Criminal Procedure Code, given that it is not proven that another act followed
execution after the service of the contested check and specifically that he received
country seizure. The objection, insofar as it was deemed admissible, must therefore be
be formally accepted and the legal and substantive validity of the
reasons (article 933 of the Civil Procedure Code).

With the first ground of opposition in its first part, the opponents request the
cancellation of the suspended checks for execution, citing that they suffer from vagueness, as they do not separate the individual amounts ordered by capital, interest
and expenses, resulting in damage, if it is not clearly apparent
requirement, so that they can refute each item separately. This reason
is legally valid, based on the provisions of articles 159 no. 3, 904, 916, 924
and 933 of the Code of Civil Procedure, and must be examined further and on its merits.
From all the documents that the parties legally invoke and present,
some of which are mentioned in more detail below, without omitting any for
the essential diagnosis of the difference, the following facts are demonstrated
incidents: With the payment order no. ………./2017 of the Single Judge
Court of First Instance of Thessaloniki, the opponents were obliged to pay a
each in its entirety to the banking company under the name
<<………………………>> < the amount of 976,515.41 euros, plus default interest (and
other statutory charges), from the day following the closing of the account,
namely on 30.12.2016 and until full repayment, with compound interest at
law and with legal charges and expenses, as well as 15,422 euros for legal fees
expense>>. Subsequently, on 17.11.2023, the defendant in the opposition, acting in the capacity of
as the administrator of the claims of the foreign special purpose company with the
name <<………………………………>>, special successor of the aforementioned original beneficiary
of an executed claim of a creditor bank, delivered to the objectors the
suspended from 15.11.2023 checks for execution against a copy of the
a copy of the above payment order, by which it orders them to
pay <the total claim amounting to a debit balance of the amount
1,117,076.02 euros and this with interest from 19.01.2021, i.e. the day after the closing of the
account and until full repayment, at the highest bank interest rate at that time
default and the compounding of interest according to law and the legal charges and
expenses until payment>>. But with this content the affected checks
they suffer from vagueness. In particular, from the combination of the provisions of the articles
904,916,918, 919, 924 and 933 of the Code of Criminal Procedure, it is concluded that the order, with which the
enforcement, must contain a clear statement of the amount due, without
It may be necessary to present the history of each item, but it is sufficient that it results from
this, the cause of the claim, which will arise in principle from the copy of the title,
under which the check is written, as well as the debt in terms of capital, interest and
expenses. Once this separation has been made, the check is complete and
It is up to the debtor to claim and prove the amortization of the claim or the inaccuracy of the accounts or the incorrect calculation or illegality of the interest.
(EfLam 32/2022, EfAth 3773/2021, EfAth 3499/2021, EfPatr 21/2021, EfAth 123/2020,
EfDod 7/2017 TNP LAW). If the check does not contain the above information, it will be
invalidity declared by the court, if in its judgment it is caused
from the vagueness of the check to the debtor procedural harm, which cannot be
be remedied in any other way than by declaring it invalid. Moreover, the report of
type of interest, in relation to the principal and the time period, is sufficient,
so that the debtor is able to monitor and understand the events, in
which the debt is founded, so that he can control them and oppose his defense
(EfAθ 3041/2022, EfAθ 3773/2021 TNP LAW).

In this case, however, given
the payment order No. …../2017 of the Judge of the Single-Member Court of First Instance
Thessaloniki, which constitutes the enforceable title, at the foot of a copy from the register
whose affected checks were issued, the objectors, as mentioned above,
were obliged to pay in full each as capital ofthe amount of 976,515.41
euros, plus default interest, from the day after the account is closed, i.e.
on 30.12.2016 and until repayment, with compound interest according to law, as well as
and 15,422 euros for legal costs, i.e. amounts that do not correspond to the amount ordered
the cancelled checks, the latter do not contain all the legally required information,
as they do not contain, according to the above, a separation of the debt by capital,
interest and costs, unless they only mention a total amount of 1,117,076.02 euros,
which the objectors are ordered to pay to the defendant, without any
separation and identification of the individual funds from which it is composed,
such as capital, interest and expenses, and in the event that this total
Interest has also been incorporated into this item, without further mention of the type of interest in question.
interest (legal or contractual) and the period of time to which they relate,
although, as noted above, these (orders) are ordered
objectors to pay the above total amount with legal interest, a lack of which
causes procedural harm to the objectors, since the latter are not in a position to
to check for any inaccuracy of funds or incorrect calculation or illegal
of interest and costs, so that they can oppose their defense. Therefore, as
The above vagueness causes procedural harm to the objectors, which cannot be
restored otherwise, except by declaring the affected parties null and void
checks (art. 158, paragraph 3 of the Code of Civil Procedure), the first argument of the present case being accepted
opposition in its first part and as essentially well-founded.

In accordance with the above, in accordance with the first part of the first argument of the
under consideration of the objection as being substantively well-founded, the objection in question must be accepted and
as substantively well-founded and to annul the contested acts of coercion
execution, as specifically defined in the operative part of this, of the
examination of the validity of the other grounds of opposition as irrelevant, provided that
tend to annul these acts of compulsory execution (EfAth
4490/2021, EfAth 4359/2021, EfAig 125/2019, EfThes 2175/2017 TNP LAW, cf. and
AP 1054/1999 TNP LAW). Finally, the defendant's opposition must be condemned, due to
of its defeat, in the payment of the legal costs of the opponents (arts. 176, 191
par. 2 of the Code of Civil Procedure, in conjunction with articles 63 par. 1 item i, sub-paragraphs a, b and c, 65, 66, 68 par. 1 of the Law.
4194/2013- Lawyers' Code), as specifically defined in its operative part
present, taking into account that the value of the subject matter of the present objection,
in order to calculate legal costs, it is always identical de facto
with the amount of money for which the execution is being expedited, and when the
The objection raised in the opposition does not concern the claim itself, but the
validity per se of the enforcement acts (AP 905/2011, AP 1114/2005, AP 328/2003, AP
1117/1993 TNP LAW).

FOR THOSE REASONS

JUDGES the opposition of the parties.
GRANTS the objection.
CANCELLED the checks from 15.11.2023 to be executed against a copy of the
apocryphal record of payment order no. ……………/2017 of the Single Judge
Court of First Instance of Thessaloniki.
CONDEMNING the defendant's objection to the payment of the court costs of
of the counterclaims, the amount of which determines the total amount of theof eleven thousand
nine hundred and forty (11,940) euros
JUDGED and decided on 15-02-2024

PUBLISHED at an extraordinary public meeting in its audience, at
Thessaloniki on 15-02-2024

THE JUDGE THE SECRETARY

Thomas Steph. Summer

MDE lawyer

Min. Doctor of Law, AUTH