The Single-member Court of First Instance of Thessaloniki, in a case successfully handled by our office, with No. 2642/2023 Decision of he accepted her Failure of our principal - borrower against Payment Order, which and cancel in its entirety by condemning the company for the management of claims from loans and credits to Court fees of the interrupter.
In particular, the reason of our Objection was accepted, with which we argued that the defendant, when issuing the contested payment order, did not properly prove the termination of the loan agreement in question and, therefore, the payment order in question was issued against the law and specifically in violation of the provisions of articles 623, 626 par. 3 and 628 of the Civil Code, due to the lack of the procedural requirement of written proof of the amount owed by the objectors, and this procedural inadmissibility of the above enforceable title cannot support the forced execution procedure expedited at the expense of the objectors with the contested act.
Here is the quote below:
Decision 2642/2023
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
SPECIAL PROCESS
It was formed by Judge Magdaleni Prassa, President of the Court of First Instance, who was appointed by the President of the Three-Member Council of the Directorate of the Court of First Instance of Thessaloniki and by the secretary…………………………………………..
Held in public, in his audience, on February 1, 2023, to hear the deposition report number ……………………………………………… opposition to payment order and check payable, between:
OF THE CONTRACTORS: 1…………………….. of ………………………, with VAT number ………………………. and 2. ………………………. of …………………… with VAT number …………………………., residents of Thessaloniki, street …………………….. no. …………. which were represented by him of their attorney Thomas Kalokiris (A.M. D.S.Th. 11982), a resident of Thessaloniki, who submitted proposals.
OF KATHI ANAKOPI: Anonymous company providing claims management services under Law 4354/2015 under the name <<………………………………………………………………………… …………………………….>> and the distinctive title <<……………………>>, as the joint-stock company was renamed with the former name <<…………………… ……………….>> and the distinguishing title <<…………………………………………>>, legally licensed under the no. …………………….. decision of the Credit and Insurance Committee of the Bank of Greece (……………………………….), based in Athens, street ……………… …… no……………, and is legally represented, TIN …………………….., which acts, by virtue of the business receivables management contract from 11-06-2021, in its capacity as a non-beneficiary and non-obligatory party and administrator of the claims, the beneficiary of which is the foreign special purpose company with the name “……………………………….”, with its registered office in Dublin, Ireland, street , ………… …………….., …………,……., …………………. and registration number……………., as legally represented, which became the special successor of the anonymous banking company with the name <<…………………………………………>>, based in Athens , street ………………….. no……………., and is legally represented, VAT number ………………………….., following the transfer to the foreign company from the latter of receivables from loans and credits in the context of securitization of claims, in accordance with the provisions of Law 3156/2003, among which is included the deriving from the judicial legal relationship, by virtue of the 16-03-2021 contract for the sale and transfer of business claims, which was presented through the power of attorney of …………………….(A.M.DSTH ………………..), a resident of Thessaloniki, who submitted proposals.
During the discussion of the case, the attorneys for the parties requested that what is stated in the minutes and their written motions be accepted.
AFTER STUDYING THE LITIGATION
AND IT WAS CONSIDERED ACCORDING TO THE LAW
The objectors, with their contested objection, request, for the reasons contained therein, the annulment of the no. 12505/2022 of the Payment Order of the Judge of the Single-Member Court of First Instance of Thessaloniki and of the check from 12-10-2022 for payment under a copy of the first executed inventory of the above payment order, which was served on them on 21-10-2022 and with which it is expedited at their expense forced execution for the satisfaction of the claim awarded with the above-mentioned writ of execution in the amount of 22,967.76 euros, plus interest and costs. With this content and request, it is clearly inferred that in the document in question admissibility accumulates, according to article 218 par. 1 and 632 par. 6 of the Civil Code, as the latter was replaced by article 1 article four of Law 4354/2015, on the one hand opposition of article 632 of the Civil Code, by which the payment order is affected, on the one hand opposition of article 933 of the Civil Code, which is against the check for payment under the first enforceable inventory of the above payment order, as long as this Court is competent to adjudicate them, there is an identity procedure and there is no risk of confusion from their simultaneous adjudication (see in relation AP 336/2007 Hell Dni 47,779, EfAth 4711/2002 EfAth Dni 44, 528, EfAth 2497/1998 Ell Dni 39, 916, Keramei/Kondyli/Nika, ErmKPolD, volume II, article 632, page 1190, no. 36, article 933, page 1775). In particular, the cumulative objections competent in substance and in place are brought for discussion before this Court during the present special procedure of property disputes of articles 614 et seq. of the Civil Code, in combination with the general articles of the general procedures 591 et seq. of the Civil Code, as these articles apply after the entry into force of Law 4335/2015 [articles 583, 584, 585, 632 par. 1 and 2, 933 par. 1 and 3 and 937 par. 3 KPolD, as article 632 was replaced by article 1 article four of Law 4335/2015, article 933 was replaced by article 1 article eight par. 2 of Law 4335/2015 and par. 3 of article 933 was replaced again by article 207 par. 2 of Law 4512/2018, and are applicable in this case, due to the service of the check to be executed,on the basis of which the contested enforcement procedure is expedited, after 1-1-2016, the date of entry into force of the above law (see article 1, article nine, par. 2, 3 and 4 of Law 4335/2015), and as par. 3 of article 937, which had been replaced by article 1, article eight, par. 2 of Law 4335/2015, is valid after its replacement again by article 59 of Law 4842/2021, in accordance with the transitional provision of article 116 par. 6 para. b. Law 4842/2021, in which article 937, as amended by article 59, applies to the decisions that will be published after the entry into force of the aforementioned law, i.e. after 1-1-2022 ( article 120 L. 4842/2021)], both were filed legally and within the deadline and indeed the opposition of article 632 of the Civil Code was filed within the legal deadline of fifteen (15) working days of article 632 par. 2 of the Civil Code, as it was replaced by the article 1 article four of Law 4335/2015, and the cumulative opposition of article 933 of the Civil Code was brought before the start of the period provided for in the provision of article 943 par. 1 para. a of the Civil Code, as this article was replaced by article 1 eighth par. 2 L. 4335/2015, given that it is not proven that another act of execution followed the delivery of the contested check for payment and, specifically, that a seizure took place, since a copy of the inventory of the first executor of the contested payment order with the counter of this, a check for payment delayed from 12-10-2022 was delivered to the defaulters on 21-10-2022 (see presented by invocation by the defendant No. 1917D and 1918D/21-10-2022 service reports of the bailiff of the district of the Athens Court of Appeal with seat at the Athens Court of First Instance …………………………………. , respectively), while the contested objection was served on the defendant on 11-11-2022 (see the service report of the court bailiff of the district of the Court of Appeal of Thessaloniki submitted by appeal no. 1812/11-11-2022 headquarters at This Court of First Instance …………………..). Therefore, the contested objection must be formally accepted and further investigated as to the admissibility and merits of its grounds. According to the provision of article 626 par. 2 KPoLD, as applicable after its replacement by article 1 article four of Law 4335/2015, the application form for issuing a payment order must contain a) what is defined in articles 117 and 118 and article 119 paragraph 1 KPolD, b) an application for the issuance of a payment order and c) the claim and the exact amount of money or securities with any interest due, the payment of which is requested. This provision differs from the provision related to the content of the lawsuit in article 216 paragraph 1 KPolD and it does not require, like it, the essential or specific determination of the historical basis, but it is content to report only those incidents, which individualize the claim from the point of view of its object, the kind and the manner of its birth and justify the existence of a corresponding specific debt of the person against whom the application is addressed to the applicant. From the above provisions, in combination with the provision of article 623 KPolD, it follows that for the issuance of a payment order, in addition to the essential condition of the existence of a monetary claim or a demand for the provision of securities arising from a legal relationship under private law, the procedural condition of written proof of both the existence of the claim and the amount, which constitutes its object, as well as the persons of the beneficiary and the obligee. For this reason, the applicant for the issuance of a payment order has, in accordance with the above provision of article 626 paragraph 3 KPolD, the obligation to attach to his application to the competent judge, the set of private or public documents, which prove the existence and amount of his claim against the person making the application. If the claim or the amount, for which the issuance of a payment order is requested, as well as the persons of the beneficiary or the obligee, are not proven in writing, the judge must, according to article 628 KPolD, not to issue a payment order. In case the payment order is issued despite the lack of it according to the above condition, the person, against whom it is directed, can achieve its cancellation through the exercise of opposition, according to the provisions of articles 632 and 633 KPolD, due to procedural inadmissibility and regardless of the existence of the claim or the possibility of proving it, as well as the persons of the beneficiary and the obligor, with other evidentiary means. Thus, the court hearing the objection, if the documents submitted for the issuance of the payment order do not prove the claim, cannot rely on other evidence than those submitted for its issuance, but must accept the objection and cancel the payment order, without, however, this decision producing adjudicated as to the substantive claim, because the object of the appeal trial is the control of the legality and validity of the payment order and not the diagnosis of the substantive validity (see related. olAP 43/2005 Greece 2005,1649, olAP 10/1997 Greece 1997,768, AP 1071/2017 T.N.P. LAW, AP 682/2015 T.N.P. LAW, AP 1608/2014 T.N.P. LAW, AP 713/2012 T.N.P. LAW, AP 330/2012 Arm 2012,1431, AP 933/2011 H.R.I.D 2012,198, AP 15/2007 T.N.P. LAW, EFATH 223/2022 T.N.P. LAW, EFATH 1227/2018 T.N.P. LAW, EFATH 2558/2011 EPolD 2012,740, EFATH 1503/2010 Arm 2010,119, Ref 110/2008 T.N.P. LAW). Furthermore, an interest-bearing loan is one whose repayment has been agreed to be made in interest-bearing installments, i.e. in installments that include part of the capital and part of the interest, provided that both parts are defined for all installments in a uniform manner, but not necessary and in equal proportions. However, when the lender has the right, according to the terms of the interest-free loan, to terminate the relevant contract early, if the installments are not paid, then all the due installments of the loan become due. With the termination, therefore, the contract of the loan as an interest-debt is resolved and the contractual term is activated, which gives the lender the right to claim immediate payment from the debtor of the entire principal owed, as well as default interest from the termination. Therefore, the loan is interest-bearing, subject to the timely and appropriate payment of the interest-bearing installments. However, when the installment is paid and the loan is cancelled, then installments are no longer due, but the entire outstanding capital until then (see related. AP 144/2021 T.N.P. LAW, AP 923/2021 T.N.P. LAW, AP 1203/2019 T.N.P. LAW, AP 1185/2019 T.N.P. LAW, Ref 110/2008 T.N.P. LAW, MEfPatr 376/2021 T.N.P. LAW). Besides, complaint, served by extrajudicial declaration, is the unilateral juridical declaration of will, which is addressed to a certain person, to whom it pertains, and such a right of termination can be provided for either in the law or in the contract. In particular, the termination of the contract is the right of the beneficiary, which is exercised by a unilateral act/declaration, addressed to the counterparty, and has as its purpose the dissolution of an ongoing debt relationship for some legal reason and acts ex nunc (for the future). As long as a contract exists and operates, it produces its legal effects until terminated. Therefore, the aforementioned right to terminate is constructive, since the power is granted, with a unilateral declaration, which acquires legal effect as soon as it reaches the contracting party (Article 167 of the Civil Code), to cause the contract to be withdrawn (dissolved) for the future, i.e. the its repeal, henceforth creates a new legal situation (see related MEfThes 1318/2020 T.N.P. LAW, MEfThes 1317/2020 T.N.P. LAW). Finally, from the combination of articles 118, 119 par. 1, 623 and 626 par. 2 of the Civil Code, it follows that a payment order can be issued, based on a loan received that was agreed to be repaid in installments and which has become due and payable in its entirety due to the termination of the loan agreement, in accordance with its relevant condition, with which it was agreed that the bank's commercial books will be a means of proof of the claim against the debtor arising from the agreement, as long as the application for its issuance includes the conclusion of a written agreement for the provision of interest loan with the aforementioned condition and the above proof agreement, the granting of the loan to the borrower, the closing of the account, which was kept for the monitoring of the loan, following a relevant, in accordance with the terms of the loan agreement, denunciation by the lending bank, the amount in favor of the last balance of the account and the amount of the agreed interest rate to find any claimed contractual interest, and the aforementioned incidents are proven in writing (see related to MEfATH 140/2018 T.N.P. LAW, MEfThes 1635/2020 T.N.P. LAW, MEfThes 473/2017 T.N.P. LAW, MEfPatr 490/2021 T.N.P. LAW, EfDod 229/2018 T.N.P. LAW, EfDod 12/2016 T.N.P. LAW). In the present case, with the eleventh ground of the considered objection, the objectors seek the annulment of the contested payment order and the interrupted check for payment, arguing that the payment order, on the basis of which the enforcement proceedings in question against them are expedited, is invalid , since a necessary condition for the issuance of a payment order against a debtor for a claim arising from a loan agreement is the prior termination of the agreement, except, however, that the defendant did not provide a notice of termination of the disputed loan agreement for its issuance, as the defendant and provided by the last out-of-court statement – complaint related to another mortgage loan agreement. This reason, as a reason against the validity of the contested payment order, on which this enforcement procedure is based, for lack of a procedural condition, namely the written proof of the amount owed by the objectors to the respective amount, i.e. the entire amount due capital of the disputed loan due to termination of the loan agreement, is legal, based on the provisions of articles 623 and 626 par. 3 of the Civil Code, and must be further investigated as to its substantial validity.
From all the documents invoked and presented by the parties, it is proven that by virtue of No. ………………. mortgage loan agreement the former anonymous banking company with the name “…………………………………….” granted to the first defaulting borrower an interest-free loan of 15,000,000 drachmas, i.e. 44,020.54 euros, for the purchase of a house, payable in 180 monthly installments, with a fixed interest rate, and the full and proper fulfillment of every obligation arising from the contract in question or debt of the borrower was guaranteed by the second objector, being liable as the first obligee, indivisible and in full with the first objector. According to condition No. 5 of this contract, it was expressly agreed that the lending bank is entitled to immediate andpremature termination of the contract, among other cases, and upon late payment of even one installment or part thereof or any amount of interest, commissions, compensations, taxes, costs, damages or from any other reason connected with the loan or in case of breach, even gratuitous, of any term of the contract, and as a result of the termination, the entire debt of the debtor from the loan will become overdue and due and the bank will be entitled to demand default interest on this total debt. This was followed by the training initially of no. …………………. additional deed of the above loan agreement, with which the conversion of the contractual interest rate to a floating one was agreed, and, subsequently, the no. ……………………. additional deed, in which the anonymous banking company with the name “………………………………………..”, after its merger with the above-mentioned banking company through absorption of the latter, was contracted as a lending bank from her and her admission of her, due to universal succession, to all of her rights and obligations arising from the above contract. With this additional act the interrupters agreed that the unpaid balance of the loan amounted to 32,583.20 euros plus interest from 8-8-2004 and the terms of the contract were amended regarding the interest rate and the conclusion of fire/earthquake and life/permanent total disability insurance and payment of insurance premiums for the above reasons. For the monitoring and service of the contract, the no. ……………………. account, which, in view of non-payment by the former interrupters already from the year 2012 of the agreed installments, on 7-8-2019 it showed a debit against the remaining amount of 22,967.76 euros, at which point the aforementioned banking company closed the account and transferred the balance to the no. ……………………final arrears account. Further, it appeared that the defendant, invoking her capacity as manager of resulting from the above loan agreement, the beneficiary of which is the foreign special purpose company with the name “……………………………………”, to which the above-mentioned anonymous banking company was transferred from its original beneficiary, with its application dated 5-3-2022 and with deposit report number ………………………………, under the further request to enter into the aforementioned loan contract and its additional acts, on behalf of breakers delay in the timely and regular servicing of the loan, the definitive closure of the contract servicing account, the transfer of its outstanding debit balance to a definitive delay account and the termination of the contract and declaration of the entire unpaid balance of the loan due and payable, requested the issuance of a payment order against the breakers, responsible in full, for the amount of 22,967.76 euros, with interest from the day after the notice of termination of the contract was served on them, i.e. from 21-8-2019, and until full payment. Based on this application, the disputed payment order was issued by the Judge of the Single-Member Court of First Instance of Thessaloniki, by which the amount requested by her above was awarded in favor of her, on the basis of the documents submitted by her to prove her claim against breakers and especially, regarding the termination of the contract, of the no. Τ6419 and Τ6418/20-8-2019 service reports of the bailiff of the district of the Athens Court of Appeal based at the Court of First Instance of Athens …………………………………., respectively, with which her out-of-court declaration of 8-14-2019 - complaint was served on them. However, from the content of the documents in question, there is no proof that the above-mentioned lending bank terminated the loan agreement in question, given that with the above extrajudicial statements it was communicated to the interrupters the complaint from 7-8-2019 of no. …………………………..mortgage loan agreement and any additional acts thereof, with a disbursement date of 8-2-1999, pursuant to which it was granted to the first interrupters loan amounting to 22,000,000 drachmas, i.e. 64,563.46 euros.The defendant's claim of complicity in the above statements of the numerical error regarding the terminated contract, presented in the written proposals, given that the reported debit balance thereof, as well as the reported final delay account, are correct, without, in fact, to deny that the immediately above had actually been concluded other loan agreement with them interrupters, does not exercise any legal influence. In addition, the, listed under the submitted by invocation by each extract of the motion of the1 no. ……………………. service account of the contract, a statement by the aforementioned bank on the termination of the disputed loan contract, the closing of this account and the transfer of the debit balance at the creditor's expense to a final overdue account, does not constitute proof of the termination of this loan contract, even if this actually took place, given that, in accordance with the provisions of the above legal consideration, the complaint, as a unilateral unaddressable declaration of intent, in order to develop legal action and produce its legal effects, namely in this case the dissolution of the loan agreement in question and the declaration of the entire unpaid balance of its capital due and payable, must reach the person to whom it is addressed, i.e. to the interrupters. However, for the issuance of the contested payment order, the defendant did not provide any relevant service reports to the interrupters termination of the contested housing loan agreement.
Following these, since, at the time of the issuance of the contested payment order, it was not proved that the disputed loan agreement had been terminated and, as a result, the entire unpaid balance of its capital, awarded thereby, was declared overdue and due, the payment order in question was issued despite the law and in violation of the provisions of articles 623, 626 par. 3 and 628 of the Civil Code, due to the lack of the procedural condition of written proof of the amount owed by the objectors, and this procedural inadmissibility of the above enforceable title cannot support the expedited action against the objectors with the contested act enforcement procedure. Therefore, the eleventh ground of the contested objection must also be accepted as substantially valid.
Consequently, the contested objection must also be accepted as substantively valid and the challenged payment order and the interrupted check for payment under a copy of the first executable inventory of the above payment order must be cancelled, while the examination of the others, except for the above which was examined by the Court, reasons for the opposition, as from the combination of the provisions of articles 68, 216, 218, 583, 585, 632 and 933 of the Civil Code it is clearly concluded that, when there are several reasons, legal or factual, which all together or each separately refer to the same result, i.e. in the annulment of the payment order or the act of execution, then if the court accepts one reason and, satisfying the request of the opposition, annuls the payment order or the act, it should not proceed to the investigation of the other reasons, since after the annulment of the payment order or the act, it is considered that the legal interest of the objector has been fully satisfied (see in relation. LAW).
Finally, each opposition must be condemned, due to its defeat, to pay the court costs of the objectors, according to the legal request of the latter (articles 176 of the Civil Code, 63 par. Ia, 65, 66 and 68 par. 1 N 4194/2013 "Lawyers' Code"), determined on the basis of the amount of the claim for which the execution was expedited (see related AP 905/2011 T.N.P. LAW, AP 328/2003 HRID 2003,547), as more specifically defined in the ordinance.
FOR THOSE REASONS
JUDGES opposition of the parties.
ACCEPTED the objection.
CANCELLED the payment order No. 12505/2022 of the Judge of the Single Member Court of First Instance of Thessaloniki and the 12-10-2022 check for payment under a copy of the first executor of the above payment order
CONDEMNING the professor1 of the opposition to the payment of the court costs of the objectors, which he sets at the amount of four hundred and fifty (450) euros.
ADJUDGED and decided on February 24, 2023
THE JUDGE THE SECRETARY
PUBLISHED in Thessaloniki, in his audience, and in his extraordinary public meeting, on February 24, 2023, without the presence of the parties and their attorneys, with the presence and the Secretary, Kh considered the same day.
THE JUDGE THE SECRETARY
Thomas Steph. Summer
MDE lawyer
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