With the no. 18/2023 Decision of Magistrate's Court of Vasiliki the request to overturn the seizure of immovable property on our principal's immovable property was accepted. In that way, the auction was also cancelled which had been rushed.
In particular, the Court accepted that the imposed confiscation should be overturned due to the lapse of a period of one year, according to the provisions of Article 1019 of the Civil Code.
According to the article 1019 KPolD:
The confiscation, if no auction followed within one year after it was imposed or a re-auction within six months of the auction, is overturned, if requested by anyone with a legal interest, by a decision of the magistrate's court in the district in which the confiscation was imposed, which judges according to procedure of articles 686 et seq. The court immediately communicates the decision without culpable delay to the auctioneer who must stop any further action and request that a relevant note be entered in the confiscation book. Reversal is deemed to have occurred for everyone after the decision is published.
2. The time limits defined in the previous paragraph do not include the period from the issuance of a decision in accordance with article 966 paragraphs 3 and 4 until the day of the auction set in accordance with it, the period of suspension of execution, which was granted by court decision or with the common consent of the person accelerating and the debtor, which is confirmed by a notarial deed, as well as the time from August 1 to 31.
3. If before the issuance of the decision according to par. 1, creditors with the qualifications of independent seizure had been announced, according to articles 972 par. 2 sec. b' and 1006 par. 1 sec. a', the overturning occurs for them only if the above deadlines had also been completed for them from their announcements. Otherwise, the confiscation against them is maintained and there is an independent deadline for overturning it from their announcement, but this deadline is never completed before six months have passed since the overturning.
Here is the text of the decision:
DECISION NUMBER 18/2023
APPLICATION GAK 1017/2023 – EAK 17/2023
THE BASILIKON COURT OF THE PEACE
SAFEGUARDS PROCEDURE
Consisting of Ilias Papadopoulos, justice of the peace, without the participation of a secretary.
He sat in public in his audience on 21 September 2023 to try the case between:
OF THE APPLICANTS: ….. who appeared at the trial on his behalf attorney Thomas Kalokiris (AMDSTH 11982) and filed a written note.
OF KATHI: of an anonymous banking company with the name "………………………………..» who appeared at the trial through the attorney ……………………. (AMDSTH …………………….) and submitted a written note.
The trial of this application was set, the trial mentioned at the beginning of this. During the discussion of the case the attorneys of the parties developed their claims and requested that what is mentioned in their notes be accepted. Discussion followed.
AFTER STUDYING THE LITIGATION
CONSIDERED ACCORDING TO THE LAW
According to the provision of article 1019§1 of the Civil Code, the confiscation, if no auction followed within one year after it was imposed or a re-auction within six months of the auction, is overturned if requested by anyone with a legal interest, by a decision of the Magistrate's Court in its district which the confiscation was imposed, which is being tried under the procedure of articles 686 et seq. of the Criminal Code. The Court that orders the reversal, only investigates the existence of the conditions of the Law, if the condition of the passing of the legal time is not met, it is obliged to order it (see AP 1531/1995 HellD 1548). The Court notifies the decision without culpable delay to the auctioneer who must stop any further action and request that a relevant note be entered in the confiscation book. Reversal is deemed to have occurred for everyone after the decision is published. A direct consequence of the issued decision, which has a transformative nature, is the abolition of the executive procedure and the invalidity of further procedural acts and the auction, which, if it happens, suffers procedurally, since it was done at a time when the seizure no longer existed The deadline of article 1019§1 of the Civil Code begins to run from the day after the seizure and when there is still an announcement based on an enforceable title, so that it is assimilated, from article 972§2 sec. 2nd CColD, with confiscation. Purpose of its institution of overturning introduced by this provision is the acceleration of the enforcement process and the avoidance of long-term sequestration of the debtor's assets for the benefit not only of the debtor but also of the economy. When the auction or re-auction is delayed, the interest of the debtor, as well as the principle of the economic exploitation of the goods which is governed by the Law, require the release of the object of seizure and its reintegration into the cycle of transactions, (see G. Stattheas : "The Execution", pp. 1861 - 1862, Ap. Georgiadis, in D. 18/761, P. Mazis: "Real security of Anonymous Companies", No. 450 - 452, AP1488/1987,1988/807, EfThes 658 /1998, Arm 1998/1248, EfATH 12219/1989, HellDni 33/596.Also: EirThes 239/1993, ArchN 1994/589, EirIgoum 28/1993, ArchN 1995/329, EirAlessandr 11/1993, EpTrAxX 1995/85) . Furthermore, it follows from the provision of §2 of article 1019 of the Civil Code that it is not excluded, during the procedure, the occurrence of periods of time, during which the progress of the enforcement procedure is hindered. The cases of §2 are exceptions to the general rule of the deadlines of §1, and the wording of the provision shows the restrictive character of these cases. Thus, according to the provision of §2 of the above article, the time period from the issuance of the decision in accordance with article 966 §§3 and 4 of the Civil Code until the day of the auction set in accordance with it is not counted in the deadlines of §1. the time of suspension of execution granted by a court decision or reached by mutual consent of the executor and the debtor and certified by a notarial deed, as well as the time from August 1 to 31. For the identity of the legal reason, apart from the cases expressly provided for in §2 of article 1019 of the Civil Code, this provision cannot be applied proportionally in other casesimpulses in which the creditor is in a legal or actual inability to continue the enforcement procedure, because the legislator, when enacting §2 of 1019 of the Civil Code, if he wanted those periods of indefinite duration not to be included in the above deadlines, during which the pending auction process, then he would have included them in the exceptions or, if they arose in the future, he would have proceeded with the corresponding legislative amendment of § 2 of 1019 of the Civil Code, something that has not happened to date.
With the judgment, the applicants, invoking a legal interest, request the reversal of the confiscation imposed, pursuant to no. ………………./……………………… report of forced seizure of immovable property of the Judicial Commissioner of the Court of Appeal of Thessaloniki based at the First Court of Thessaloniki ……………………………… on immovable property, as sufficiently described, by urgent application to the defendant, as universal successor to the banking company incorporated under the name ” …………………………………………..”(TIN ………………………), due to the split of the latter with the spin-off of its banking activity branch and the establishment of a new (banking) company and namely the defendant's application, in which the claims against the applicants were transferred. This application is competently and admissibly brought to be discussed in this Court in the procedure of articles 686 et seq. of the Civil Code and is legal based on the provisions of articles 68, 76, 1019 and 176 of the Civil Code and should be further investigated in terms of its substance validity.
It follows from articles 335, 338 to 340 and 346 of the Civil Code that the court, in order to form a judicial conviction about the validity of the real claims of the parties, which have a significant influence on the outcome of the trial, must take into account the legally submitted (for immediate proof or for the inference of judicial presumptions) evidentiary means, as long as they are clearly and definitely invoked by the party (Coll.AP 2/2008, AP 87/2013, AP 179/2013, AP 495/2013). The invocation of the evidence is clear and definite when it is special and its identity is derived from it (Coll.AP 23/2008, AP 481/2013, AP 179/2013). However, no provision mandates the specific mention and separate evaluation of each of the evidence invoked and presented by the parties, but the general mention of the type of evidence taken into account is sufficient (AP 17/2013), while as separate components of the documentary evidence must include the autopsy report and report (359 CPC), the opinion of the experts (383 CPC), the minutes of the examination of witnesses (410 CPC) and sworn statements (270 par. 2 and 339 CPC), ( AP 495/2013, AP 481/2013), while, for the opinions according to article 390 of the Civil Code, no special mention is required, since it is a document that is specifically regulated and not a special piece of evidence, and the mention of the decision that "were taken into account all documents" covers them as well (Coll. AP 8/2005, AP 87/2013, AP 481/2013). In the present case, of all, without exception, the documents that are legally invoked and presented by the parties, which are taken into account for direct proof or for the inference of judicial presumptions (articles 336 par. 1, 2 and 3, 339 and 395 of the Civil Code), the confessions of the litigants which are deduced from all their claims (Article 261 of the Civil Code), as well as from the lessons of common experience and logic (Article 336 par. 4 of the Criminal Code), which are taken into account ex officio by this Court, it was assumed that ……………………. was notified to the applicants the report of the compulsory seizure of immovable property of the bailiff of the Court of Appeal of Thessaloniki with seat at the Court of First Instance of Thessaloniki, numbered …………………………… /……………………..,………… ……………………………., by virtue of which a forced auction of immovable property is accelerated, which was set to take place by electronic means on …………………………., on Wednesday and from time 10.00 am until 2.00 p.m., before the notary public of Thessaloniki ………………………………….., designated as the auctioneer. The compulsory auction is expedited by virtue of ……………… (for the first applicant) and from ……………… (for the second applicant) checks to be executed, drawn up under a photocopy of the number ………………./2015 of its first executive inventory with number …………………./2015 payment order of the Single Member Court of First Instance of Thessaloniki, which (cheques for execution) were notified to …………….. With the above checks for execution/payment, they were ordered to pay the expediter the total amount of ……………………… ...€. The aforementioned forced seizure was imposed for the amount of 100,000 euros, on the immovable property and in particular on Him ……. . On the above confiscated immovable property he has registered on ……………………. in the mortgage books of the Royal Mortgage Registry in volume ………………………sheet …………….. and number …………, mortgage note for the amount of ……………………….€ in favor of the bank and as security for her claim which was awarded with the payment order numbered ……………………../15. The auction set to be held on ……………………., Wednesday at 10:00 a.m. until 14:00 pm, on the electronic platform, with a first offer price of the amount of ………………. €, suspended by order of the expediter. Subsequently, the expediter with the number …………………../……………….. deed of the notary auction clerk of Thessaloniki ……………………………, the expediter set a new date auction at ………………………..(…………) …………………………………. ……………………. day Wednesday and time 10.00 a.m. at 12.00pm, by electronic means on the electronic auction platform, with a first bid price of €…………………………………………. However, the auction was cancelled, due to a lack of bidders, with the act of canceling the auction with the number ……………………../…………………….. of the official of the notary public of Thessaloniki ……………… ………….. Then, the urgent with the number ……………………/……..-………-……………… deed of the notary auctioneer of Thessaloniki ……… …………………….., set a new auction date on (…….) ……………………………………………………. day Wednesday and time IO.OOp.m. at 12.00pm, by electronic means on the electronic auction platform, with a first bid price of ……………………………… E. The auction, however, was canceled due to a lack of bidders with the number of ……… ……………./……………-………..-……………….. act of canceling the auction of the notary auctioneer of Thessaloniki …………………………….. Already the defendant accelerates a new auction, with a declaration of continuation of the auction and with the number …………………………/………-………-……………. deed of the notary auctioneer of Thessaloniki …………………………….., delivered to us on …..-….-……, pursuant to which a new auction was set for ………..-… …….-……………….., day Friday from 10.00 to 12.00 by electronic means. With the provisions of article 1019 of the Civil Code, as amended and in force today, the confiscation, if no auction followed within one year after it was imposed or re-auction within six months of the auction, is overturned, if requested by any legal interest, by decision of the magistrate's court in whose district the confiscation was imposed, which judges according to the procedure of articles 686 et seq. The overturning is considered to have occurred in respect of all after the decision has been published, while in paragraph 2 it is stipulated that within the deadlines, defined in the previous paragraph, is not calculated a) the period from the issuance of a decision, in accordance with article 966 paragraphs 3 and 4 of the Civil Code, until the day of the auction set in accordance with it, b) the period of suspension of execution, which was granted by a court decision or by joint consent of the one who accelerates and of the debtor, which is confirmed by a notarial deed, c) as well as the time from August 1 to 31. In the present case, from the day after the seizure was imposed (………….-…………-………..) until the time of discussion of the application in question (………….-……-……… ……..), a period of time has passed (………….. years, ……………….. months and ……………. days equal) ………………….. months and … ……….. parts. Excluding a) the period of one (1) month, from 1 to 31 August 2021, one (1) month for the 8The month of 2022 and one (1) month for the 8The month of 2023 and, in total, 3 months and b) Initially, the date of the auction was set on ………….. However, pursuant to article 83 par. 11 of Law 4790/13.3.2021, the auction was not conducted. Specifically, according to the last provision, the auctions that were to be held after 13-5-2021, as in this case, are cancelled, since there is not enough time to meet the deadlines related to the determination of the discussion and the issuing of a decision on opposition according to article 933 § 2 and 6 of the Civil Code. The new date for conducting these auctions is set in compliance with the deadline of article 973 of the Civil Code. Subsequently, a declaration was made to expedite a new auction, under no. 973 § 1 of the Civil Code, on ……………….and the attached number …………………………./……………………. was prepared for it. deed of the notary Thessaloniki ………………….. With this company, he declared in accordance with article 973 par. 1 sec. 2 of the Civil Code, in conjunction with article 83 par. 11 of Law 4790/2021, that accelerates the above forced auction and the date of the auction was set as 4.5.2022 in accordance with the provisions of article 973 par. 1 sec. 2 of the Civil Code and article 83 par. 11 of law 4790/2021, with the same first offer price of the seized property. Therefore, the time period from ………………….to ……………………, i.e. …………… months and ………… days will be deducted from the total calculation of months for finding of the time required to reverse the seizure. Therefore, from the day after the seizure was imposed (…………………..) until the time of discussion of the application in question (…………………), a period of time has passed (…….. years, … …months and ……… days equal) ……… months and ……… days minus (…………… plus …………… equal) ……. months and ……days equal to ………. months and …………. days. Therefore, this period of …………months and …………. days is longer than the twelve months stipulated by the law for the reversal of the seizure, while in the above procedure no notice of another creditor has been submitted, so that a calculation other than the aforementioned deadlines is required. As a consequence of the above, since more than a year has passed since the above-mentioned seizure was imposed, without an auction, the application under consideration must be accepted as to its substantial merits and the overturning of the above-mentioned forced seizure must be ordered. Finally, the defendant must be ordered to pay the court costs of the applicants, due to their defeat (Article 176 of the Civil Code), as specifically defined in the ordinance.
FOR THOSE REASONS
Judges opposition of the parties.
Accepts the request.
Orders the overturning of the recorded and described enforced confiscation, which was imposed with the number ……………………./……….-………….-…………….. compulsory confiscation report real estate of the bailiff of the Court of Appeal of Thessaloniki based at the Court of First Instance of Thessaloniki, …………………………
It orders the chief clerk of this court to notify the decision to the notary public auction clerk.
He imposes on the defendant the court costs of the applicants, which he determines at two hundred (200) euros.
It was judged, decided and published on ………………………, on …………………………….., in public in an extraordinary meeting, without the presence of the legal representatives of the applicants and the defendant 's, but also of their attorneys.
THE JUDGE AND THE SECRETARY
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