“The purpose of the enactment of Law 3869/2010 is, first and foremost, to ensure the settlement of the phenomenon of over-indebtedness, which is required for reasons of both public interest and respect for the value of the debtor as a human being. Therefore, the guideline for the final judgment of the competent Court is the settlement of debts in the most correct and beneficial way for both opposing parties and not the draining and extermination (economic and moral-social) of the over-indebted debtor.” The Single-Member Court of First Instance of Thessaloniki ruled with Decision No. 10789/2021, on a case successfully handled by our office, which vindicated in the second instance a retired borrower, whose income was reduced and ordered the haircut of his debts by 82% with an exception from the sale of his assets.
Specifically, the Court ordered the repayment of the total amount of 6,000 euros over 5 years, i.e. in monthly installments of 100.00 euros, for monthly installments of approximately 350.00 euros and a total debt of 35,437.13 euros.
Therefore, the total "haircut" amounted to 29,437.13 euros, occupying 82% of the loans.
The following is an excerpt from Decision No. 10789/2021 of the Single-Member Court of First Instance of Thessaloniki.
DECISION 10789/2021
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
VOLUNTARY JURISDICTION PROCEDURE
ASSEMBLED by Judge Alexandra Papachristou, Court of First Instance, who was appointed by the President of the Three-Member Board of Directors of the Court of First Instance of Thessaloniki, and the Secretary Anastasia Tsertsoglou.
MEETING publicly in its hearing on September 8th, 2020, to try the case between:
OF THE CALLER-APPLICANT: …………., who appeared with his attorney-in-fact Thomas Kalokyri (A.M.D.S.T.H. 11.982), who submitted proposals.
THE APPEALANT'S REQUEST: An anonymous banking company with the name …… as legally represented.
DURING THE DISCUSSION OF THE CASE, which was legally pronounced in turn by the relevant panel, during the hearing listed at the beginning of this present hearing, the attorney-at-law of the party present requested that what is stated in his proposals be accepted.
AFTER STUDYING THE LITIGATION
THOUGHT IN ACCORDANCE WITH THE LAW
[…] With his application, the appellant, citing a lack of bankruptcy capacity and a permanent inability to pay all of his overdue financial debts to the creditor bank, requested the settlement of his debts, in accordance with the provisions of Law 3869/2010, in accordance with the debt settlement plan he submitted, and, in the alternative, the settlement of his debts in court, with the exception of the sale of his car with registration number ……, manufactured by ……, type ……….. and the recognition of his exemption from the remainder of the debts. On this, the aforementioned Court of Justice issued decision number 507/2019, which rejected the application as unfounded in substance, considering that the applicant and already appellant did not prove that he had become permanently and permanently unable to pay his overdue financial debts, having not fulfilled the provision provided for in article 1 of Law 3869/2010 for his affiliation to it. The already appellant complains against the above decision in his appeal under consideration, for the reasons contained therein and relating to incorrect application and interpretation of the law and faulty assessment of the evidence, requesting that the appealed decision be set aside, in order to accept his application. Finally, he requests that the respondent be ordered to pay his legal costs.
From the reassessment of the in-person testimony of the applicant and already appellant in the hearing of the Court of First Instance, which is contained in the same minutes as the respondent, and of all the evidence presented to the Court of First Instance and is re-presented before the present and, in particular, from all the documents that the appellant-applicant legally invokes and presents, either as independent evidence or for the purpose of establishing judicial presumptions, as well as from all the evidence that is taken into account within the framework of the principle of free evidence and the investigative system applied in the present procedure of voluntary jurisdiction, in combination with the lessons of common experience, and from the confessions of the appellant-applicant, but also from the new evidence that is presented and which is invoked to prove the new factual allegations (article 765 of the Code of Civil Procedure), the following facts are proven:
The appellant, currently approximately 73 years old, is married to ………. aged 62, with whom he has two adult children, aged 41 and 38 respectively. The appellant-applicant is a pensioner of the Social Insurance Institution, receiving the amount of €1,221.86 per month, and resides with his aforementioned wife in a property owned by their aforementioned son, located at….. There is no other family income, given that his aforementioned wife does not work, but is exclusively engaged in household chores. Furthermore, the living expenses of the appellant-applicant and his wife, beyond those required to cover their basic living needs, namely for food, clothing, footwear, transportation, housing operating expenses, repair and maintenance of household equipment, household consumption and personal care items, catering expenses, etc., given the fact of the couple's residence in the aforementioned residence, taking into account their age, are particularly increased, given the burdened state of health of both. Specifically, the appellant-applicant is regularly monitored by a specialist cardiologist, given that episodes of precordial pain have occurred in the past, and for this reason he receives the appropriate medication (Scoperidone, Plavix, Thiamthon, Trimethoprim, Imipramine, Norfloxacin, Vimpat). In addition to the aforementioned health problems, the appellant developed prostate cancer (see in relation to the tickets from 17.12.2019, 26.03.2020 and 30.07.2020 at the A.N.T. "Theageneion" and the corresponding individual prescription of the same Hospital). His wife, according to IOO10, presents with recurrent depressive disorder and dysthymia, conditions which are treated with individual supportive psychotherapy and medication (Daxid 45 euros, Methodia 150 euros, Noathdio 100 euros); For the above reasons, the said expenses cannot fall short of the amount of approximately 1,300.00 Euros, taking into account the corresponding survey of family budgets of the Hellenic Statistical Authority.
Furthermore, it was proven that the appellant-applicant and his wife do not own any real estate. The appellant-applicant has the right of full and exclusive ownership over the private cars, with registration numbers ……., cubic capacity respectively, 1,497 oo, 1,597 oo and 1,200 oo, with first year of circulation respectively in 2005, 2007 and 1980, which are of negligible value, due to their age, with the additional fact that they are necessary for their travel, both to the city of Thessaloniki (if they reside outside it) and within and outside the city. The appellant-applicant and his wife do not own any other property, movable or immovable.
Furthermore, it was proven that at a time prior to the year from the filing of the legal application at the Court of First Instance, the appellant-applicant had assumed the following debts to the creditor bank, which are considered overdue upon notification of the application and are calculated at their current value at the time of the application (see Cretan Settlement of debts of over-indebted individuals p. 99): 1) the amount of 33,723.92 Euros, arising from the number ….
consumer loan agreement, and 2) the amount of 1,713.21 Euros, arising from the consumer loan agreement numbered ….. The above amounts amount to a total of 35,437.13 Euros. Furthermore, it was demonstrated that the undeniable economic crisis, which affected all the productive sectors of the Greek economy (and whose symptoms were manifested in a way that was perceptible to everyone from the first months of 2010), directly affected the living expenses of the applicant and his dependent family members. and, by extension, their financial strength, solvency and creditworthiness. From the income tax returns and the administrative tax assessment acts of the financial-tax years 2011 and onwards, significant differences-cuts in the annual earnings of the applicant and already appellant, which constitute the only family income, emerge. Moreover, the amount required to service his loan obligations - which exceeded that of 350.00 Euros - already exceeded what he could pay, taking into account the presumed living needs (at family level) and the monthly incomes, as these were extrapolated.
Based on the above, the appellant-applicant cannot meet the service of his debts, due to the lack of sufficient income, in accordance with the aforementioned, with the inevitable consequence of his general and permanent inability to pay his overdue financial debts. The financial situation in which he has fallen during the current period is not expected to improve, due to a combination of factors, in particular his age, in combination with the generalized negative economic situation, which excludes the possibility of a future increase in his income - taking into account the characteristic of their stability -, while, at the same time, his loan obligations are constantly increasing, due to the burden of the above contracts with default interest. Therefore, in this case, there is a permanent and continuous inability to pay the overdue debts of the appellant-applicant to his creditor, which he fell into due to an uncaused change in his financial circumstances. In light of the above, it is considered that the assets of the appellant-applicant are not sufficient to satisfy his creditors, while the conditions for his inclusion in the regulation of Law 3869/2010 and, in particular, the provision of article 8 §2 are met. According to what has been developed above, the Court of First Instance - which rejected the appeal because it considered that the applicant did not prove that he had become permanently and continuously unable to pay his overdue financial debts - erred in the application and interpretation of the law and the assessment of the evidence and, therefore, if the applicant's appeal is accepted in its essence, upon acceptance of its grounds related to the above, the respondent should disappear and the case should be kept in this Court.
In particular, in view of the income of the appellant-applicant and, in general, the above financial data, there is a legitimate case, according to the provisions of article 8 §§1 and 2 of Law 3869/2010, for his legal debts to be subject to regulation, with the definition of monthly installments - given the amount of his debts - of 100.00 Euros, as this Court considers that this amount can be paid monthly, without jeopardizing his livelihood (and that of his protected family member, namely his wife), payable within the first ten days of each month, starting from the month following the notification of the decision to him by the creditor and for a period of sixty (60) months. The Court is led to this judgment, taking into account the above (sole) income of the appellant and weighing it against his living and, in general, family needs. In particular, the particularly high demands of care that both he and his wife require are taken into account, and from a financial point of view, given that the illnesses from which both suffer, according to the lessons of common experience, are not amenable to improvement, but are treated conservatively with frequent visits and sessions with specialist doctors and the faithful adherence to the appropriate medication, but also in combination with the general economic crisis, in the context of which the amounts of salaries and pensions payable are decreasing, with no prospect of their increase. The total amount owed by the appellant-applicant amounts to 35,437.13 Euros, which is analyzed according to the above, while with the payment of the amount of 100.00 Euros per month to the creditor and proportionally distributed among its claims, the appellant will pay the amount of (60 X 100.00 € =) 6,000.00 Euros and there will be a remaining balance of (35,437.13-6,000.00 =) 29,437.13 Euros. It should be noted that, pursuant to the interim order granted to the appellant dated 21.07.2017, the payment of the amount of 56.00 Euros per month was ordered, proportionately distributed among the claims of his creditor and already appealed-as the application, for the period from August 2017 until the time of the discussion of the application, to the content of which the appellant complied. Therefore, in accordance with the provisions of article 5 of Law 3869/2010, these payments must be included in those of the final arrangement (60 months-7 months that the interim payments lasted- 53 months). In accordance with the provision of article 9 §4 of Law 3869/2010, the appellant is obliged to pay the amount of the difference within one year from the end of the payments of the arrangement of article 8 §2 of Law 3869/2010, given that the monthly amount of the temporary payments falls short of that of the temporary arrangement. The amount of the difference amounts to (7 months X €100.00-7 months X €56.00= €700.00-€392.00=) €308.00, which will be paid after 53 months and within one year, with interest from the start of the year, at the interest rate of the main refinancing operations of the European Central Bank, increased by 2.50 percentage points. In accordance with the provision of article 11 §1 of Law 3869/2010, the exemption will occur after the above (supplementary) payments. The above regulation of article 8 §2 of Law 3869/2010, does not consider it appropriate by this Court to combine it with the possibility provided for by the provision of article 9 §1 of the same Law of selling the liquid assets of the applicant, namely the aforementioned private cars, given that it does not consider it necessary for the satisfaction of the creditor, given their negligible value due to their age. Moreover, it should be noted that the existence of liquid assets does not automatically indicate the obligation of the Court to order their liquidation. The sale is “deemed necessary for the satisfaction of creditors” when it will yield a price that will lead to “a significant improvement in the position of creditors”, that is, when there may arise an “expectation of receiving a similar consideration”, from which it can be concluded that the asset can and should be sold. It is very likely that there are assets whose liquidity is difficult due to their properties or value, while it is possible to more effectively serve the creditors’ claims by developing and exploiting the assets, rather than by liquidating them. After all, the purpose of the enactment of Law 3869/2010 is, primarily, to ensure the settlement of the phenomenon of over-indebtedness, which is required for reasons of both public interest and respect for the value of the debtor as a human being. Therefore, the guideline for the final judgment of the competent Court is the settlement of debts in the most correct and beneficial way for both opposing parties and not the draining and extermination (economic and moral and social) of the over-indebted debtor. All of the above must be taken into account, especially in this case, in which
Therefore, in accordance with what has been developed above, the applicant's appeal must be accepted in its essence, upon acceptance of its reasons related to the above, and, the respondent having disappeared and the case being reserved in this Court, as already explained above, the legal application must be accepted as substantively well-founded, according to the more specific provisions of the operative part of this judgment. Finally, due to the victory of the person who filed the appeal and deposited the corresponding fee of seventy-five Euros (€75.00), this must be returned to him (Article 495 of the Code of Civil Procedure).
FOR THOSE REASONS
HE JUDGES in the absence of the respondent.
ACCEPTED formally and in substance the appeal under consideration.
DISAPPEARS the appealed decision, number 507/2019, of the Thessaloniki Court of Justice (voluntary jurisdiction procedure).
HOLDS the case.
HE JUDGES on the application with filing number 6128/23.05.2017
ACCEPTED The application.
REGULATES the appellant's debts referred to in the reasoning of this decision, for fifty-three (53) months (53 monthly installments), with monthly payments of one hundred Euros (€100.00) each, to his creditor, starting on the first ten days of the month following the notification of the decision to him by the latter, distributed in proportion to his claims.
IMPOSE to the absentee the payment of the total amount of three hundred and eight Euros (308.00 €) to his creditor, in proportion to his claims, immediately after the expiry of the payments of the final settlement of article 8 §2 of Law 3869/2010, after fifty-three (53) months and within a year, with interest from the start of the year at the interest rate of the main refinancing operations of the European Central Bank, increased by 2.50 percentage points.
AVAILABLE the return of the appeal fee to the appellant who filed the appeal.
Thomas Steph. Summer
Counsel for the Appellant
Min. Doctor of Law, AUTH
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