The Magistrate's Court of Thessaloniki with the no. 348/2022 Decision of, on a case successfully handled by our office, ordered the repayment of the total amount of 19,000.00 euros, with monthly installments of 55.55 euros for 3 years and 94.45 euros for 15 years, against monthly installments of 454.70 euros and total debt amounting to 100,887.73 euros. Debt reduction amounted to 82%% without divestment of assets.
The Court held that the applicant, who inherited the debt from her deceased son “indeed today it is in permanent default of payment, This crisis is inferred from its liquidity relation to its overdue obligations. That is to say, this relationship is negative in the sense that, after deducting the costs to cover her living needs, the remaining liquidity does not allow her to meet the volume of her debts, or at least a substantial part of them, without having to bears responsibility“.
The following is an excerpt from No. 348/2022 of the Decision of the Magistrate's Court of Thessaloniki.
VOLUNTARY JURISDICTION PROCEDURE L. 3869/2010
Number: 348/2022
THESSALONIKI JUSTICE OF THE PEACE
FOUNDED by Justice of the Peace Aikaterini Kardakou, who was appointed by the President of the Three-member Board of Directors of the Justice of the Peace and Secretary Christina Maragakis.
HELD in public in his audience on June 9, 2021 to try the following case between the parties:
OF THE APPLICANT: …… who appeared through her attorney Thomas Kalokiris (AM: 11982 DSTH).
OF THE SHAREHOLDER IN THE OWNER OF PISTOTRIA: The anonymous banking company with the name of ……
OF THE MAIN INTERVENTOR: The anonymous company with the name of ……. which was represented by the attorney of …… […]
STUDY THE LITIGATION CONSIDERED ACCORDING TO THE LAW
[…] In the debt settlement process according to Law 3869/2010, the non-participating creditors retain the status of a third party vis-à-vis the ongoing process. The creditors, therefore, those who were not included in the debtor's application, can choose to intervene in the trial, if they justify a legitimate interest. In this case, the relevant request gives the voluntary participation of the third party in the process, the character of the main intervention, which, in fact, can also be exercised with a simple statement entered in the minutes, in accordance with article 54 par. 1 sub.b' of the Civil Code in conjunction with article 15 of Law 3869/2010 (see Ath. Kritikos, Settlement of debts of over-indebted natural persons, pp. 83-86, no. 7-11, IRATH 48/2011, IRATH 68/2011), by circumventing the corresponding provision of article 752 paragraph 1 of the Civil Code (P. Arvanitakis, Voluntary Jurisdiction as a procedural framework of Law 3869 /2010 on the settlement of debts of over-indebted natural persons), as the absolute procedural freedom of the third party to intervene before the judicial body that receives the request for judicial settlement of the debts, seems to be imposed (see article 15 of Law 3869/2010..."where it is imposed ..,") from the need to effectively secure the interests of all the applicant's creditors, therefore also the interveners (P, Arvanitakis, The Voluntary Jurisdiction as a procedural framework of Law 3869/2010 for the settlement of debts of over-indebted natural persons). In this case, when the application was spoken, it appeared ……. and made a main intervention with a statement of her attorney-at-law registered in the minutes, regarding her claims, the rights of which she entered by virtue of a special succession. With her proposals that she presented to the audience, she developed this statement as the main intervention, primarily requesting the rejection of the application, which, according to the correct assessment of the petitioner, is considered to include as an auxiliary request the settlement of the applicant's debts. According to the above, the above main intervention was carried out admissibly given that the intervener maintains the status of a third party in relation to the ongoing process (art. 70 of the Civil Code), and is legal pursuant to the provisions of art. 54 paragraphs, 1 ed.b1 PtK in combination with the articles 8 and 15 of Law 3869/2010. It therefore needs to be further investigated from a substantive point of view.
With the application at hand, the absentee, who is citing a lack of bankruptcy capacity and a permanent inability to pay her overdue financial debts to her creditors, referred to in the application, primarily requests the validation of the debt settlement plan, as proposed by her or as such be amended and additionally, in the event of failure to reach a judicial settlement, their settlement by the court, so that it is released from any existing balance of its debts towards its aforementioned creditor, as is clearly inferred from the entire content of the application, in accordance with the plan arrangement, which she submits, after taking into account her property and family situation, which she sets out in detail, as well as to exclude from the sale her main residence and the other assets mentioned in the application. Finally, he requests that the legal expenses be offset between the parties.
With the above content, the application competent in substance and in place is brought to this Court to be adjudicated by the procedure of voluntary jurisdiction (Article 3 of Law 3869/2010), since for its admissibility, the procedure of pre-trial compromise was observed, as provided by the provisions of art. 11 of Law 4161/2013, which amended Article 2 of Law 3869/2010. Besides, no other application of the absentee is pending, nor has a previous decision been issued to settle her debts, in this Court or another Magistrate's Court of the country, as it appears from the ex officio audit of the Secretariat of this Court (see related documents). Acceptably, this application is introduced for discussion after: a) the timely and legal summons of your shareholder in the creditor trial and b) the failure of the judicial settlement. Furthermore, the application is accompanied by: a) the documents that the debtor has at his disposal and which concern his property and assets, his income of any kind, his creditors and their claims, b) a written declaration of the debtor regarding the correctness of the content of the application referred to in paragraph 1 of article 4 of Law 3869/2010, the correctness and completeness of statements j) of his property and income, d) of creditors and their claims in terms of capital, interest and costs as well as the of non-existence of transfers of real rights on his properties during the last three years [see article 4 par. 2 Law 3869/2010, as the no. 2, which had been replaced by article 12 par. 1 of Law 4161/2013, was replaced again by article 2 par. /14.08.2015) and covers applications submitted after its entry into force (19.08.2015) – article 2 par. A subpar. A, 4 article 2 par. 5 and article 4 of Law 4336/2015]. After the receipt and initialization of the application by the Secretariat of this Court and after it was established that there are no formal deficiencies, a file was opened for the preservation of the documents and a trial was set for the discussion of the application, as well as a trial for the discussion of the validation of the pre-trial settlement , who failed Kat was granted a temporary injunction. Furthermore, the application is definite, rejecting the vagueness objection put forward by the main intervener, since the applicant includes in her application the elements of art. 4 par. 1 of Law 3869/2010 as well as the conditions of art. 1 of Law 3869/2010, given that apart from those mentioned in the above provisions, no other element is required for the determination of the application and legal, based on the provisions of articles 1, 4, 5, 8, 9 and 11 of Law 3869/ 2010, as valid after its amendment by Laws 4336/2015 and 4549/2018, which also applies to applications pending at the time of its entry into force (in accordance with its transitional provisions). However, the request to ratify the settlement plan according to article 7 of Law 3869/2010 is illegal, since the ratification of this plan by the parties, according to the same article above (7 of Law 3869/2010), is not the subject of the request of article 4, paragraph 1 of Law 3869/2010, but a legal consequence of their free agreement, in the event that no creditor raises objections to the original or amended debt settlement plan or they all agree to it, in which case the Justice of the Peace, after finding that a compromise has been reached, according to the above, with his decision, validates the plan or the modified plan, which, from its validation, acquires the force of a judicial compromise. The Court, at the procedural stage from the filing of the application at the Registry of the Court until the hearing, does not have the power to compel the applicant or her creditors to compromise and, therefore, the said request has no legal basis and must be rejected. In addition, the request to exclude from the sale the other assets described in the application, is also rejected as illegal, as in article 9 par. 2 of Law 3869/2010 it is possible for the debtor to request the exception of the sale only of his main residence and not any other peripheral element. The Court, however, considering the circumstances in general, may decide that an asset is not suitable for sale for the reasons specifically mentioned in its decision. According to the law, the judgment is also unfounded with regard to the request to set off the court costs between the parties, as in the procedure of Law 3869/2010, court costs are not awarded. As for the rest, after the payment of the legal fees of the discussion, the application must be investigated further, as to its substantial validity.
Both with the oral statement of her attorney-at-law, which was recorded in the minutes and with her proposals, the main intervener denied the application and put forward the following claims and objections: a) she claimed that the applicant is not in permanent default of payment, because from none of the elements of the application and the documents we provide indicate any significant change in its financial capabilities nor events that led to its inability to pay. The above claim constitutes a reasoned refusal of the application based on the lack of one of the essential conditions of Law 3869/2010, namely the permanent and general inability to pay the debts of the absentee and will be investigated in the context of the merits of the application in question, b) the objection fraudulently causing the absentee to become insolvent, because the applicant guaranteed loans taken by her son, creating debts totaling 100,887.73 euros, while she knew that based on her income she would not be able to meet her loan obligations. The objection in question is legal, based on article 1 par. 1 of Law 3869/2010 and needs further investigation on the merits and c) the objection of dishonest statement - contrary to the basis of the duty of honesty (article 10 par. 1 of Law 3869/2010 ) for the reason that the applicant does not accurately specify the amount of her monthly income and expenses at the time of the provision of the guarantees, nor the amount of the monthly installment she had to pay, so that her financial situation during the period cannot be made clear undertaking its loan obligations and the possibility of servicing them. The objection in question is deemed to be rejected as vague and therefore inadmissible, given that the creditor who submits it, bearing the burden of proof, must allege and prove that the debtor concealed specific incomes or assets and with intent or gross negligence omitted the virus declaration (see Ath. Cretan, Regulation of the debts of over-indebted natural persons, teirii edition, Article 10, no. 43, p. 464).
From the assessment of the sworn examination of the applicant's witness contained in the minutes concurrent with this decision, as well as all the documents presented and invoked by the parties, none of which are omitted for the essential diagnosis of the case in question, the following facts were proven facts: The applicant, aged 70, is a widow since 2010 and the mother of four adult children, of which her son ……….. died on 7.12.2009 (see certificate of the Municipality of Orestiada, Evros Prefecture, no. 206/11/09 death certificate of the Registry Office of the Municipality of Thessaloniki, under no. 34/A /2011 death certificate of the Registry Office of the Municipality of Thermaikos). The applicant is a pensioner with monthly pensionable earnings totaling 922.48 euros, including 676.14 euros old-age pension and 246.34 euros widow's pension (see monthly pension payment notice April 2021 and December 2020). The applicant suffers from diabetes mellitus, arterial hypertension and rheumatoid arthritis and receives medication (see the opinion of pathologist - diabetologist Theodosias Kechidos).
The applicant lives with her son ..., who is unemployed, in an apartment on the fifth floor (5u) building floor, in Thessaloniki, on the street ………. which belongs to her by full ownership in a percentage of 25% undivided, by virtue of the no. 672/13.10.2011 declaration of acceptance of inheritance of her deceased husband before the notary public of Thessaloniki Aikaterinis Aidonidou. The above apartment is her main residence for which she requests exemption from the sale according to article 9 par. 2 of N3869/2010, and the net worth of her share amounts to 16,038 euros (see ΕNF1Α 2020). In addition, the absentee has full ownership of 10.50% undivided land of 6,750 sq. with plot number ...., within which there is a building with an area of 24 sq.m. year of construction 1996, located on the farm of …….. of the Prefecture of Thessaloniki, even and buildable, within a city plan, which is an independent and divisible part of a larger field with number .... with a total area of 13,500 sq.m., by virtue of the sale contract no. 6706/8.6.1990 before the Thessaloniki notary Eleni Efthymiadou-Dimitriou. Finally, he has an IX factory-built HYUNDAI ACCENT car, 1,399 cc, year of registration 2009 and registration number ……. The above percentage of the applicant on the above described property, as well as her car are not considered suitable for sale, because in any case they are not going to arouse buying interest and yield any appreciable price to satisfy the creditor, due to their low estimated value , due to the percentage of joint ownership of the applicant on the property and the age of the car, taking into account the costs of the sale process (liquidator's fee, publication costs, etc.), for this reason it is judged that the article 9 paragraph should not be ordered , 1 n, 3869/ 10 their sale.
The amount, which is necessary to be spent monthly to cover her living needs, taking into account reasonable living expenses, which, however, only serve as guidelines (see, 1, Venieris-Θ, Katsas, Application of law, 3869/ 2010 for over-indebted Natural Persons, Third Edition, p. 498), amounts to 772.48 euros, which is covered by her pension. Moreover, it must be taken into account that the debtor, who requests to be subject to the beneficial provisions of the law, must, for his part, reduce his expenses to a minimum only to the absolutely necessary, for the period of time provided by the law three years old. In a year prior to the filing of the legal application, the applicant assumed the following debts to the respective creditor, which, whether secured by guarantees or not, are considered overdue upon notification of the application and the latter are calculated at their current value at the time of notification of the application, while the de facto insured continues to accrue interest at the interest rate of the current debt until the time of issuance of this decision (art. 6 par. 3 Law 3869/2010) and owes to "…..", the following sums by capital, interest and expenses: a) from under no. 10158000002696179 housing loan contract (guarantor), the amount of 70,656.13 euros and b) from under no. 10158000002696799 housing loan contract (guarantor), the amount of 30,231.60 euros. Therefore, the total debt of the absentee amounts to 100,887.73 euros.
Based on the aforementioned, it is concluded that the above loans due to their amount and the actual situation in which the applicant finds herself today, as described above, led her to a permanent and continuous inability to pay her overdue debts to her creditor, from the year 2015 , as she suffered a decrease in her income. At the time of the provision of the guarantees in the above loan agreements (2006), her husband was alive and their family income amounted to approximately 1,340 euros per month (see statement of financial year 2007), and the monthly installment for servicing the of loans, according to the 10% of the last updated installment, amounts to 454.70 euros and could be covered by the applicant. In addition, the above loans were repaid by her firstborn son ...., while he was alive. After the death of her son, the above loans were serviced by the widow and heir of ……. until May 2016 (see no. 3670/2018 decision of this Court), while thereafter she became permanently and generally unable to pay due to her unemployment status. During the same period of time, the applicant was unable to continue paying the monthly installments for their service, given that her husband had passed away on the 6th of June 2011 and she herself had suffered a reduction in her income, while she also developed health problems, with the consequence of falling into a permanent and general inability to pay its debts. Indeed, today the absentee is permanently in default of payment. This crisis is inferred from the relation of its liquidity to its overdue obligations. That is, this relationship is negative in the sense that, after deducting the costs to cover her living needs (as defined above), the remaining liquidity does not allow her to meet the volume of her debts or at least a substantial part of them, without bearing responsibility for this (see also Eirkouf 1/2012 TNP LAW). Moreover, the inability to pay is consequential and did not previously exist at the time of entering into its loan obligations, in accordance with the above mentioned. For these reasons, the conduct of the absentee is not judged to be fraudulent as a whole, the relative objection of the main intervener being rejected. The applicant therefore fulfills all the conditions required by law for her to be subject to the provisions of Law 3869/2010.
Since, therefore, the applicant adequately met her obligation to prove that the conditions of Law 3869/2010 and in particular those of art. 8 par. 2 and 9 par. 2 of Law 3869/2010 as the latter were supplemented and amended by the provisions of Laws 4336/2015 and 4346/2015 (art. 338 of the Civil Code) as well as the provisions of Law 4549/2018 (Government Gazette A 105/14.6.2018), which also applies to applications pending at the time of its entry into force (according to its transitional provisions), the Court will settle her debts. Thus, the settlement of these debts will be made with monthly payments directly to the creditor from her income for three years (36 months) which will begin immediately after the publication of the decision (art. 8 par. 3 Law 3869/2010). Regarding the more specific content of the regulation, the monthly amount to be made available is set for the applicant at the amount of 150 euros, which she will pay to her creditor for three years (36 months). The applicant is reminded that if his income or financial situation improves in any way, he must, in accordance with par. 3 of article 8 of the law in question, notify this within one month to the Court's registry, as the debtors art. 10 paragraph 1 subsection a' of the same above law have an obligation to submit an honest declaration throughout the period of settlement of their debts. And the amount, which the applicant will be asked to pay in full, as an installment of the regulation of article 8 par. 2, will be determined after the distribution with the monthly installment of the regulation of article 9 par. 2 for the rescue of her main residence (article 9 par. 2b of law 3869/2010, as added by article 62 par. 3 of law 4549/2018).
The above regulation of the applicant's debts will be combined with the provision of article 9 par. 2 of Law 3869/2010, as it is in force today after its replacement by article 14 of Law 4346/2015, since with the payments of the above arrangement, the creditor's claims are not paid and a request is made to exempt her main residence from the sale, after which said exemption is mandatory for the Court if the conditions laid down by the said article are met cumulatively, such as valid from 1.1.2016 for the inclusion of viruses in the regulation. In this case, it was proven that: a) the property described above constitutes the applicant's only residence, b) the applicant has a monthly income that does not exceed reasonable living expenses plus 70 % (772.48 euros living expenses X 170 % » 1.313 .21 euros), since this amounts to 922.48 euros, c) the objective value of her residence does not exceed the protection limit set by the law (180,000 euros for unmarried, increased by 40,000 euros for married and by 20,000 euros for each child and up to a maximum of three) and d) the applicant is a co-operative borrower vis-à-vis her creditor, based on the Banks' Code of Conduct, as long as the existence of the specific condition was not disputed, therefore the conditions of the law for the inclusion of the main of residence in the regulation of art. 9 par. 2 for exemption from divestment. According to the above provision, in order to determine the amount that the debtor is obliged to pay to save his main residence, on the one hand, he must take into account his maximum ability to repay, and on the other hand, that he will pay such an amount that his creditors are in the same financial position compared to virus satisfaction from any foreclosure sale of the residence. Therefore, the estimated amount of the auction, based on the current commercial value of the property, minus the costs of the execution, is now important for what the debtor will pay to save his main residence, while the first bid price for the property auction is defined as the commercial its value (see art. 993 par. 2 section c' and 995 par. 1 section 6' of the Civil Code as well as Presidential Decree 59/2016 and under no. 54/2015 Decision of the Executive Committee of the Bank of Greece ). Therefore, in order to save it, the applicant should pay the amount that her creditor would receive in the event of forced execution, i.e. an amount corresponding to its commercial value (see art. 993 para. 2 para. c and 995 para. 1 para. . d' KPolD), minus the costs of enforcement. In particular, taking into account the sale price of houses with these characteristics, their area and age, the area where it is located, the lessons of common sense and experience and market conditions, the commercial value of similar properties in the same area, the purchase price of , of the 15.11.2019 assessment of mechanical engineer Antonios Oikonomopoulos provided by the applicant, the commercial value of her share of this residence is estimated at 20,000 euros. Deducting the costs of enforcement (bailiffs', notary's fees, publication costs, etc.) which are estimated at 3,000 Euros, the minimum amount that the creditor would receive in the event of enforcement by foreclosure of his main residence amounts to amount of 17,000 euros. The repayment of this amount will be made with interest, without compounding, at the average mortgage interest rate with the floating interest rate, which will be valid at the time of repayment, in accordance with the statistical bulletin of the Bank of Greece, adjusted with the reference interest rate of the Main Refinancing Operations of of the European Central Bank or, in the event of a fixed interest rate, the average mortgage interest rate for a period corresponding to the regulation, as similarly obtained from the Bank of Greece's statistical bulletin. It will begin the first month after the publication of this notice, and its repayment period must be set at 15 years (180 monthly installments), taking into account the repayment period of the loans, the financial capacity of the absentee, as well as her age, each monthly installment will be payable within the first ten days of each month. Consequently, in the framework of the above arrangement, the absentee should pay the monthly amount of 94.45 euros (17,000 euros/180 months) to satisfy the demands of her creditor in accordance with the proportional application of art. 974 ff. of the Civil Code. However, according to paragraph 2b of article 9 of law 3869/2010, which was added by article 62 paragraph 3 of law 4549/2018 and which according to paragraph 8 of article 68 of the transitional provisions of the latter, is also applied to lawsuits that are pending when the law comes into force, i.e. on 14-06-2018, "During the payment period of paragraph 2 of article 8, the court distributes the amount that the debtor can pay between the debt settlement of the article 8 and of the debt arrangement plan of this article, ensuring that creditors will not find themselves without their consent in a worse financial position than that in which they would be in the event of forced execution". In this case, the amount of 150 euros was set for the absentee, as the maximum monthly repayment possibility. Thus, from the amount of 150 euros, an amount of 94.45 euros, will constitute the installment for the regulation of article 9 par. 2, for the rescue of the main residence of the absentee, as mentioned above and therefore the remaining balance of 55.55 euros per month , will constitute the installment for the regulation of article 8 par. 2. Therefore, regarding the regulation of article 8 par. 2 the applicant will have to pay from the first month after the publication of this notice and for three years (36 months) to ….. the amount of 55.55 euros per month, in accordance with its requirements as follows: a) for the sub1 No. 10158000002696179 housing loan contract, the amount of 38.90 euros and b) for the no. 10158000002696799 housing loan agreement, the amount of 16.65 euros. Regarding the regulation of article 9 par. 2, he should pay from the first month after the publication of this the amount of 94.45 euros per month in 180 monthly installments. In the above manner, both the basic principles governing the two regulations are fulfilled, namely the principle of not exceeding the monthly maximum repayment capacity of the regulation of article 8 par. 2 and that of ensuring that the creditor of the absentee will not find herself in a worse financial situation position in relation to the amount she is set to receive in return for saving her residence.
Pursuant to the above, the considered application must be accepted as valid in its substantive aspect and the debts of the absentee referred to in this application must be regulated, as specifically defined in the ordinance. Parabola for the case of opposition to default judgment by the parties who are tried in absentia is not defined, because the possibility of exercising such an opposition is not provided for by law (art. 14 Law 3869/2010). Court costs are not awarded according to art. 8 par. 6 of Law 3869/2010, as applicable.
FOR THOSE REASONS
TRIED in the absence of the creditor and in opposition of the other litigants.
JOINS the application and the main intervention.
He REJECTS what he considered to be rejectable.
GRANTED the application in part,
ACCEPTS the main intervention.
ADJUSTS the debts of the absentee according to art. 8 par.2 of Law 3869/2010 for three years, i.e. for 36 months with the definition of monthly payments to "…..", amounting to fifty-five euros and fifty-five cents (55.55), which will start from the first month after the publication of this notice and will be payable on the first ten days of each month, the amount proportionately distributed among its claims, as follows: a) for the under no. 10158000002696179 housing loan agreement, the amount of 38.90 euros and b) for housing loan agreement no. 10158000002696799, the amount of 16.65 euros.
EXCEPT from the sale: a) the main residence of the absentee, i.e. a fifth floor apartment (5qu) floor of a building, in Thessaloniki, ….. which belongs to her by full ownership in a percentage of 25% undivided and b) her other assets mentioned in the application.
IMPOSES on the applicant the obligation to pay for the rescue of her main residence the amount of seventeen thousand euros (17,000) for a period of 15 years (180 months) and specifically imposes on her the obligation to pay monthly for 180 consecutive months, the amount of 94.45 euros in …. starting from the first month after the publication of this. From these payments, the demands of the creditor will be satisfied in accordance with the proportional application of art. 974 ff. KPalD. The payment of these monthly installments will be made within the first ten days of each month and without compounding at the average mortgage interest rate with the floating interest rate, which will be valid at the time of repayment according to the Bank of Greece statistical bulletin, adjusted with this reference interest rate of the Main Refinancing operations of the European Central Bank or, in case of setting a fixed interest rate, the average mortgage interest rate for a period corresponding to the regulation, as similarly appears from the Bank of Greece's statistical bulletin.
Thomas Steph. Summer
MDE lawyer
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