Another great judicial success of our office is the Decision of the Thessaloniki Magistrates' Court dated April 5, 2017 and No. 2908/2017, which ordered the "haircut" of debt arising from a mortgage loan of 75%, while simultaneously saving the borrower's main residence!!
Specifically, he ordered the repayment of the total amount of 9,406.96 euros in 13 years, namely in monthly installments of 50 euros for the first three years and then in installments of 63.39 euros for the next ten to save the main residence, for monthly installments of 400.00 euros and a total debt of 37,363.33 euros!!
Therefore, the total "haircut" amounted to 27,956.37 euros, accounting for 75% of the loan!!
The text of the Decision follows in its entirety (edited only to delete the names of the parties):
VOLUNTARY JURISDICTION PROCEDURE L 3869/2010
Number 2908/2017
THE THESSALONIKI PEACE COURT WAS CONSTITUTED by Justice of the Peace Triantafyllia Bakalopoulou, appointed by the President of the Three-Member Board of Directors of the Peace Court and the Secretary Vasiliki Alexaki. IT SAID publicly in its courtroom on 16 January 2017, to try the case between the parties:
OF THE APPLICANT: ……………………………, resident of Thessaloniki, ………………………… street, who was represented by attorney-at-law Thomas Kalokyris (Registration No.: 591).
THE APPLICATION OF: a public limited company with the name “…………..”, headquartered in Athens, at …………. street and legally represented, which was represented by the attorney-at-law ……………………….. (AM: …………).
The applicant requests that his application dated 22-12-2015 and with exhibit number. Registry. 16.151/29-12-2015, addressed to this Court, be accepted for the reasons he invokes therein.
During the presentation of the case from the relevant board in its order and during its discussion in the audience, the attorneys for the parties requested that what was stated in the minutes and in the motions they submitted be accepted.
AFTER STUDYING THE LITIGATION
IT WAS CONSIDERED IN ACCORDANCE WITH THE LAW
The applicant, claiming in his application that he has become permanently unable to pay his overdue debts, requests their settlement by the court according to the plan proposed by him, while also requesting an exemption from the sale of the property he uses as his main residence, so that he can be partially relieved of any existing balance of debts and against his creditworthiness included in the statement submitted by him.
From the impartial examination of the applicant in the court hearing, which is contained in the minutes of the same date, and from all the documents submitted by the parties, the following was proven: The applicant has, through no fault of his own, become permanently unable to pay his overdue and non-overdue debts due to overindebtedness. The applicant's sole creditor is “………………..” to whom he owes the amount of 37,363.33 euros from a housing loan agreement, including capital, interest and expenses (until 9-122016). With the above content, the application is brought to this Court for discussion, under the procedure of voluntary jurisdiction of articles 741 of the Code of Civil Procedure (article 3 of law 3869/2010), provided that no other application by the applicant for the settlement of her debts is pending in this Court or another Court of Justice of the country, nor has a previous application been rejected for substantive reasons, as established after an ex officio inspection pursuant to article 13, paragraph 2 of law 3869/2010 (see relevant certificates of the secretaries of this Court). Also, the applicant submits the documents of article 4 par. 2 of law 3869/2010 as amended by law 4161/2013 (solemn declaration on the correctness and completeness of the statements, etc.). Furthermore, the application in question is complete, since it contains a statement of the applicant's assets and income, his creditors and their claims by capital, interest and expenses and a plan for settling his debts according to the provision of article 2 par. 1 of law 3869/2010 (Cretan, regulation of law 3869/2010 p. 64 and E. Kiouptsidou Armen./ 64- Reprint p. 1477) and no other element is required for its completeness, as the creditor unfoundedly claims. Furthermore, it is legal based on the provisions of articles 1,4,5,6,8 and 9 par. 1 and 12 of Law 3869/2010 (as they apply after their amendment by Law 4336/2015). Given that the judicial settlement was not reached with respect to the applicant, its substantive validity must be examined, since the creditor did not accept either the initial or the revised settlement plans submitted by the applicant.
The applicant, aged ………. years, is a widower and the father of two adult daughters, aged ….. and …. years, of whom the first has studied ……………….. and is engaged and the youngest is a student ……….. at ……………. The applicant’s wife died on 4-4-2015 and since then their income, which amounted to 2,000 euros, has decreased dramatically. Since June 2016, the applicant has been receiving a disability allowance of 395 euros due to a health problem he is facing (acute hernia, requiring surgical treatment), from which he also lost his previous job. Since June 2016, he has been employed as ……………… by the sole proprietorship with the name ……………………. with net earnings of 519.30 euros, under the OAED “Labor Market Reintegration Check” program. However, the above-mentioned subsidized work is temporary, as the program lasts until May 2017. The applicant, in order to save some additional income, rents his main residence, according to the percentage that belongs to him and his youngest daughter, as described below, for a rent of 280 euros and lives in an apartment owned by his eldest daughter. In addition, he pays a rent of 230 euros for the rental of an apartment on behalf of his youngest daughter who studies at ……….
The applicant is a usufructuary of 50% in undivided share of an independent and divided apartment (which belongs in full ownership in undivided share and in fine ownership in 50% in undivided share to his daughter), located on the …. floor of a building, with internal number D4, with a gross area of 79.90 sq.m. and net 57.89 sq.m., with a co-ownership percentage in the entire plot and in the other common and jointly owned parts, spaces and other facilities of 10/1000 indivisible, as well as a warehouse in the basement of the building, numbered 16, with an area of 9.10 sq.m., with a co-ownership percentage in the entire plot and in the other common and jointly owned parts, spaces and other facilities of 1/1000 indivisible, on …………………….. The above property is the only property of the applicant that can serve as his main residence and therefore he requests its exemption from the sale, and the objective value of the full right amounts to 38,141.55 euros (see relevant sheet for calculating the objective value of a property), while the percentage of usufruct belonging to the applicant amounts to 9,508.70 euros (see ENFIA for the year 2015).
In addition to the above property, the applicant is a co-owner of a 65% undivided share of an independent and divisible part of the plot numbered …………, with an area of 494 sq.m., located at ……………, the objective value of which amounts to 10,000 euros, while the commercial value is much lower. The above property, due to its very low commercial value, is not considered suitable for sale, because it is not going to generate purchasing interest, taking into account that it is also an undivided share, nor is it going to yield a significant price for the satisfaction of the applicant's creditors, taking into account the costs of the sale procedure (liquidator's fee, publication costs, etc.), which is why it is considered that its sale should not be ordered pursuant to art. 9 par. 1 of Law 3869/10. Apart from these, the applicant does not have any other assets (movable property, real estate or deposits).
As follows from the above, the applicant's assets are not sufficient to satisfy his creditor and the court must arrange monthly payments from his income for a period of three (3) years, in order to partially repay his debts.
After taking into account all the above-mentioned elements, each monthly payment to his sole creditor “…………….” must be set at fifty (50) euros, paid on the 1st of each month starting from the month following the publication of this decision and will last until January 2020, taking into account for the calculation of the three-year period and the payments that took place pursuant to the provisional order of the Justice of the Peace of Thessaloniki dated 27-1-2017 with number 16.151/2015. Therefore, after the expiry of the three-year period, he will have paid to his above creditor the total amount of (50 euros X 36 monthly installments =) 1.800 euros.
The apartment of which the applicant has the usufruct of 50% in undivided form and is used as his main residence does not exceed the limit provided for by the applicable provisions for tax-free acquisition of a first residence, increased by 50%, and this must be excluded from the sale, after the submission of a relevant proposal by the applicant. Therefore, in order to save his main residence, the applicant must pay up to 80% of the objective value of his right, i.e. an amount up to that of 7,606.96 euros. Therefore, the amount that the applicant will pay to his sole creditor “………..”, within the framework of this part of the arrangement will amount to 63.39 euros per month, for a period of 10 years (120 months), taking into account both his age and his financial capabilities, and the monthly installments will begin to be paid after the end of the payments that will take place pursuant to article 8, paragraph 2 of law 3869/2010, starting from 1-2-2020, since it is considered that the applicant should be granted a grace period of three (3) years. The repayment of this amount will be made with interest, without compound interest, at the average interest rate of a mortgage loan with a floating interest rate, which will apply at the time of repayment, according to the statistical bulletin of the Bank of Greece, adjusted with the reference interest rate of the Main Refinancing Operations of the European Central Bank.
In accordance with all of this, the application must be accepted as well-founded and in substance and the applicant's debts must be settled according to the operative part. His release from any existing balance of his debts towards the lender included in the statement included in his application will occur by law (article 11 par. 1 of Law 3869/2010) after the execution of the obligations imposed on him by this decision and without prejudice to any amendment to this regulation. Legal costs are not awarded in accordance with article 8 par. 6 of Law 3869/2010.
FOR THOSE REASONS
JUDGES opposition of the parties.
ACCEPT the application.
DETERMINES the monthly payments of the applicant to his creditor “…………….” for a period of three years at fifty (50) euros, an amount which will be paid on the first of each month, starting from May 2017 and will last until January 2020, taking into account for the calculation of the three-year period and the payments that took place pursuant to the temporary order of the Justice of the Peace of Thessaloniki dated 27-1-2017 with number 16.151/2015.
EXCLUDES from the sale the right of usufruct of 50% in undivided ownership of the applicant over an independent and divided apartment, located on the … floor of the building, with internal number D4, gross area of 79.90 sq.m. and net area of 57.89 sq.m., as well as a warehouse in the basement of the building, with number 16, area of 9.10 sq.m., on …………., as specifically described in the application.
IMPOSES on the applicant the obligation to pay, in order to save his aforementioned right to his aforementioned residence, the amount of sixty-three (63) euros and thirty-nine (39) cents per month for 10 years (120 months). The payment of these installments will begin from 1-2-2020 and will be made without compound interest at the average interest rate of a floating-rate mortgage loan that will apply at the time of repayment, according to the statistical bulletin of the Bank of Greece.
It was judged, decided and published in Thessaloniki on April 5, 2017, in an extraordinary and public session in its audience without the presence of the parties and their attorneys.
THE SECRETARY OF THE JUSTICE
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