“The challenged check for execution dated 14-4-2021 is invalid, because it includes prescribed interest and, specifically, includes prescribed interest on overdue amount 44.447,61 euros, so that it is not possible to accurately calculate the total claim after compounding interest every six months and capitalizing the above-mentioned interest.”
The Single-Member Court of First Instance of Thessaloniki ruled, in a case successfully handled by our office, with its Decision No. 13582/2021, annulling a check for execution issued by the bank with which it required the opponents to pay it the total amount of 238,894.27 euros and awarding legal costs to it..
The following is Decision No. 13582/2021 of the Single-Member Court of First Instance of Thessaloniki.
Decision number 13582/2021
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
(Special procedure for property disputes)
It was composed of Judge Barkouki Eleni, Court of First Instance, appointed by the President of the Three-Member Board of Directors of the Court of First Instance, and Secretary Christina Christoyannis.
It sat in public in its audience on 27.9.2021, to try the case between:
OF THE DEFENDANTS: …. who were represented by their attorney, Thomas Kalokiris (AM DSTH 11982), who submitted proposals and requested that the statements in the opposition petition be accepted and in them, according to
THE COURT'S OBJECTION: The banking company with the name ……, which was represented by its attorney-at-law, …., who submitted proposals and requested that the matters referred to therein be accepted and the objection be rejected.
The objectors request that their objection dated 12-5-2021 be accepted, which was filed with the Secretariat of this Court under the filing report number 7473/6110/14.05.2021, specified for the hearing referred to at the beginning of this present case and written on the board.
During the discussion of the case, the attorneys for the parties developed their claims and requested that what was stated in the trial minutes and in the written submissions they submitted be accepted.
AFTER STUDYING THE FILE, HE THINKS IN ACCORDANCE WITH THE LAW
With the contested objection, the objectors request the cancellation of the check for payment dated 14.4.2021, which has been attached below a certified copy of the first enforceable inventory of the Payment Order numbered 110770/2013 of the Judge of this Court, by which (check) they were ordered to pay jointly and severally and in full to the defendant the amount of 77,933.15 euros), plus interest and costs, which arose from the credit agreement with an open (jointly indebted) account numbered 224001752/06.04.1990, as well as to order the defendant to pay their legal costs. This is competently brought before this Court (Article 933 §§ 1 and 2 of the Code of Civil Procedure), according to the rules of procedure of Articles 614 et seq. of the Code of Civil Procedure, in accordance with the provisions of Articles 934 § 1, 937 § 3 of the Code of Civil Procedure. Furthermore, the above objection was filed in due time within the time limit provided for by Article 934 § ] par. a' of the Code of Civil Procedure, as this is not specifically disputed. Therefore, it must be further investigated as to the admissibility and validity of its grounds.
According to article 250, no. 15 of the Civil Code, claims for interest are time-barred after five years, and according to article 251 of the Civil Code, the limitation period begins from the time the claim arose and its legal pursuit is possible. Furthermore, according to article 253 of the Civil Code, the limitation period for claims referred to in article 250 of the Civil Code begins upon the expiration of the year in which the commencement of the limitation period, as defined in the previous articles, coincides. From the above provisions, it follows that default interest, which is due from the nuisance under articles 340 and 345 of the Civil Code, is also time-barred after five years. The five-year limitation period begins to run from the beginning of each subsequent year in which the interest has been generated and in which the beneficiary could have brought an action and requested it. Moreover, according to Article 268 of the Civil Code, any claim confirmed by a final decision or by a public enforceable document is subject to a statute of limitations after twenty years, even if the claim itself is subject to a shorter statute of limitations. However, claims for benefits that are repeated periodically and confirmed by a final decision or by a public enforceable document, due in the future, are subject to the shorter statute of limitations. From the above provision it follows that, by way of exception to the rule established in Article 268, paragraph 1, of the twenty-year limitation period for claims confirmed by a final decision, when it concerns a periodic benefit, such as the benefit of interest, since at the time of the finality of the decision confirming it, it is not due, because it becomes due later, the claim for this benefit - by way of exception to the rule established in the first paragraph of Article 268, paragraph 1, of the twenty-year limitation period for claims confirmed by a final decision - is subject to the short-term limitation period defined in Article 250, paragraph 15, of the Civil Code, which begins as soon as the year in which it became due expires. In order for the first paragraph of Article 268 of the Civil Code to apply, it is required that the claim for interest be specifically confirmed by the final decision, and it is not sufficient to confirm only the capital. In the case of an objection to the limitation of periodic benefits, which refer to adjudicated default interest, it must be stated in order to substantiate it, in addition to the time of origin of the claim and the time point of commencement of the limitation, and the amount of each periodic benefit per year, provided that the interest constituting the periodic benefit is not derived for the entire future period based on a fixed capital, otherwise the objection is indefinite (AP 535/2015, AP 623/2011, AP 592/2009, AP 1355/1998 TNP Law). In this case, the objectors, with the third ground of their objection, claim that the check for execution dated 14-4-2021 is invalid, because it contains time-barred interest. With this content, the third ground of objection is also defined, according to what is understood in the above legal consideration and is substantively well-founded. Specifically, the disputed payment order was issued on 24-5-2013 and the objectors were ordered to pay jointly and severally and in full to the defendant the amount of 77,933.15 euros, with legal interest from 11-1-2012, the date on which the defendant terminated the loan agreement. However, the latter requests, with the payment order dated 14-4-2021, the indefinite payment of periodic interest claims (default interest) from 11-1-2012. which are subject to the shorter limitation period of five years, since these are claims for periodic interest payments that at the time of the issuance of the contested payment order were not due as they were made later due (268 of the Civil Code). Therefore, the contested payment order dated 14-4-2021 is invalid, because it includes time-barred interest and, specifically, it includes time-barred interest of 44,447.61 euros, so that the exact calculation of the total claim after compounding interest every six months and capitalization of the above-mentioned time-barred interest is not possible. Therefore, based on the above, the third ground of the legal objection must be accepted as substantially well-founded. Therefore, since the third ground of the present objection was accepted as substantially well-founded, it is unnecessary to examine the other grounds and. the legal objection must be accepted as substantially well-founded and the check for payment dated 14.4.2021, which has been placed below a certified copy of the first enforceable inventory of the payment order with number 110770/2013 of the Judge of this Court, must be cancelled. Finally, the legal costs of the opponents must be imposed on the defendant of the objection, due to its defeat (articles 176. 182 and 191 par. 2 of the Code of Civil Procedure), according to the specific provisions of the operative part of this decision.
FOR THOSE REASONS
JUDGES the objection, opposition of the parties, with filing report number 7473/6110/14.05.2021.
ACCEPTED the objection.
CANCELLED the check for payment dated 14.4.2021, which has been placed below a copy of a certified copy of the first enforceable inventory of the Payment Order of the Judge of this Court with number 110770/2013.
CONDEMNING the defendant's objection to the legal costs of the appellants, which it sets at the amount of six hundred (600.00) euros.
Thomas Steph. Summer
MDE lawyer
Min. Doctor of Law, AUTH
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