The Single-member Court of First Instance of Thessaloniki, in a case that was successfully handled by our office, with the no. 391/2023 Decision of, accepted the partial revocation of the decision to register a pre-notification on two of the encumbered properties due to over-collateralization of the respective banking company's claims.
In particular, the Court accepted our contention that the value of the other encumbered properties is sufficient to secure the claim of the creditor banking company, with the result of partially revoking the decision to register a pre-mortgage note on the disputed properties and ordering the complete elimination of the pre-mortgage note on them. In that way, the immovable property of our principal borrowers was released despite the contrary will of the bank.
Here is the full decision:
DECISION 391/2023
G.A.K./E.A.C. number of application submission: 17596/14592/12-9-2022
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
SAFEGUARDS PROCEDURE
CONSTITUTED by Judge ……………………, Presiding Judge, appointed by lot in accordance with the law.
MEETED publicly in his audience, on December 20, 2022, without the cooperation of the Secretary, to hear the application with the number G.A.K./E.A.K of filing 17596/14592/12-9-2022, between:
OF THE APPLICANTS: 1) The general partnership with the name “………………………………..” and the distinctive title “………………………………….”, with registered office, …………………………………., A.F.M. ………………………………., as legally represented, 2) ………………………………….. of …………………….., resident Thessaloniki, street ……………………, no. ……………….., VAT NUMBER. ……………………………. and 3) …………………………………………, the genus …………………………, Thessaloniki, street ………………………….., No. …………, VAT NUMBER. ……………………, who were represented by proxy their lawyer, Thomas Kalokiris (A.M DSTH 11982), who filed a memo.
OF KATH'S APPLICATION: The anonymous banking company with the name "…………………………..", which is based in Athens, street …………………………,
DURING the discussion of the case the attorney for the applicants developed his contentions and asked that they be admitted.
AFTER STUDYING THE LITIGATION
CONSIDERED ACCORDING TO THE LAW
[….] The applicants, with their present application, request that the decision 23915/2000 of this Court (proceeding for interim measures) be partially revoked, by which the applicant was granted the right to register a pre-mortgage note on their fully owned properties to secure a claim he has against them, for the reason that this claim has now been mostly paid. The application is duly introduced to be discussed before this Court during the interim measures procedure (articles 686 et seq. of the Civil Code) and is legal, based on the provisions of articles 696 § 3 of the Civil Code, 416, 1323, 1330 of the Civil Code. Therefore, it needs to be considered further on its merits.
From the affidavit of the witness ……………………. which was legally examined in the audience during the discussion of the case and the documents submitted by the applicants the following facts were presumed facts: by virtue of the 23915/2000 decision of this Court (interim measures procedure), each applicant registered a pre-mortgage note, up to the amount of 42,000.00 euros, on properties fully owned by the applicants, to secure interestlet her claim, arising from her no. ………………….. credit agreement with an open mutual account and its corresponding increment …………………………. The footnote was entered in volume ……………. and number …… of the Mortgage Registry's mortgage books Thessaloniki, on 29-9-2000, in properties, as mentioned above, fully owned by the applicants, namely: A) in six independent and divided offices in the first recess of the building after the fourth (40) floor, i.e. fifth (50) floor, owned by the first of the applicants: 1) an independent and divided office, with internal numbering on this floor one (1), facing the street ……………………………., which is located on the left for the person entering from the entrance of the first (a') recess area of a gross area of twenty-two and eighteen square meters (22.18 m2) and a net area of sixteen and eighty-five square meters (16.85 m2) , bordered all around by the street ………………., with the no. two (2) office of the first recess of the building, with the property of the brothers ……………………., with a shared corridor and with an elevator of the first recess of the building, as shown in the attachment at no. 2423/08-05-2000 contract of the Thessaloniki notary ………………… floor plan with the details A.V.G.D.E.A. after the corresponding percentage from an undivided plot and on the other jointly owned and shared spaces, parts and facilities of the entire building of one centimeter and forty centimeter of a centimeter (1.40 %), with KAEK …………/…./…., n the objective value of which amounts to 21,621.60 euros, 2) an independent and divided office, no. internal numbering on this floor two (2), facing the street ……………….., which is on the left for the person entering from the entrance of the first (a') recess, area mixed but after the shared square meters etwenty-seven and ninety-one centimeters (27.91 m2) of net square meters and twenty-one and twenty centimeters (21.20 m2), contiguous around with the street …………………….. with the subno. one (1) office of the first recess of the building, with no. three (3) office of the first recess of the building and with a shared corridor of the first recess of the building, like this appears on the floor plan attached to the above contract with the details A.B.Z.H.TH.A. after the corresponding percentage from an undivided plot and eamong others common properties and common spaces, parts and facilities of the entire building of one centimeter and ninety centimeter of a centimeter (1.90 %), with KAEK ………………………/…../……, the objective value of which amounts to amount of 21,621.6 euros, 3) an independent and divided office, no. internal numbering on this floor three (3), facing the street …………….., which is located on the left for the person entering from the entrance of the first (a') recess, of mixed area but against the common users withthree square twenty-eight and forty-four centimeters (28.44 m2) and net square meters twenty-one and sixty centimeters (21.6 m2), contiguous around with the street ………………….. with the no. two (2) office of the first recess of the building, with accproperty of ……………………., with a shared corridor and with a toilet on the first recess of the building, like this one appears in the floor plan attached to the above contract with the data H.I.K.L.H. after the corresponding percentage indivisibleof the plot and so on common properties and common spaces, parts and facilities of the entire building of two centimeters (2 %), with KAEK …………………………./…../………., the objective value of which amounts to the amount of 25,740 .00 euros, 4) a self-contained and biquiet office, no. internal numbering on this floor is four (4), facing the rear uncovered (green) of the building, which is located on the right for the person entering from the entrance of the first (s') recess, of mixed area, but after the common users square meters of twenty-eight and five centimeters (28.05 m2) net and square meters of twenty-one and thirty centimeters (21.30 m2), contiguous around with the back uncovered space (green) with the no. five (5) office of the first recess of the building, with a property owned by ………………………………………., with a shared hallway and with a toilet on the first recess of the building, like this one appears in the floor plan attached to the above contract with the details M.N.X.O.P.R.M. after the corresponding percentage ex undivided plot and on the rest common properties and common areas, parts and facilities of the entire two-centimeter building (2 %), with KAEK ………………………./………./………………., the objective value of which amounts to amount of 25,740.00 euros, 5) a self-contained and divided office, under no. internal numbering on this floor is five (5), facing the rear uncovered (green) of the building, which is located on the right for the person entering from the entrance of the first (a') recess, of mixed area but after the common areasof twenty-eight and sixty-four square meters centimeters (28.64 m2) net and square meters of twenty one and seventy four centimeters (21.74 m2), bordering all around the rear uncovered area (green) with no. four (4) office of the first recess of the building, with the no. six (6) office of the first recess of the building, and with a shared corridor of the first recess of the building, as shown in the floor plan attached to the above contract with the details N.X.S.T.N. after the corresponding percentage from an undivided plot and on the other common properties and common spaces, parts and facilities of the entire building of two centimeters (2 %), with KAEK ………………………./…./….. , the objective value of which amounts to 250,00 euros, 6) an independent and divided office, no. internal numbering on this floor is six (6), facing the rear uncovered (green) of the building, which is located on the right for the person entering from the entrance of the first (a') recess, with a gross area of seventeen square meters and eighty-nine centimeters (17.89 m2) net and square meters of thirteen and fifty-two centimeters (13.52 m2), bordering around the back uncovered area (green) with the no. five (5) office of the first recess of the building, with the property of the brothers ……………………… and with a shared corridor and jointly owned staircase of the first recess of the building, as shown in the floor plan attached to the above contract with the details Y.F.X.PST.Y. after the percentage corresponding to it from an undivided plot and on the other jointly owned and shared areas, parts and installations of the entire building of one centimeter and ten centimeters of a centimeter (1.10 %), with KAEK ……………………/…./………, the objective value of which amounts to the amount of 19,000.00 euros, which came into the ownership of the first of the applicants by virtue of the no. 2423/08.05.2000 contract of the Thessaloniki notary, ……………………………….., which was legally transcribed in the transfer books of the Thessaloniki Mortgage Office in volume ………….. and number …………… on ………………………, B) in an office complex, with an area with the proportion of shared square meters of one hundred and twenty-three and twenty-two centimeters {123.22 m2) occupying the entire second recessed floor, i.e. sixth (6th ) floor, consisting of a corridor, five (5) independent offices (rooms) and a toilet, after the corresponding percentage of the undivided plot and on the other communally owned and shared spaces, parts and facilities of the whole building of one hundred nine thousand and ninety centimeters of millimeter (109.09/1000), with KAEK ……………………………/…./……., the objective value of which amounts to the amount of 114,00 euros, which came into the ownership of the first of the applicants by virtue of no. 2437/19-5-2000 of the contract of the notary of Thessaloniki,………………………….., which was legally transcribed in the transfer books of the Thessaloniki Mortgage Office in volume ………………….. and number … …………….., C) on properties owned by the second and third applicants, namely: a) to a self-contained and divided ground floor shop as a horizontal property,on the left as we enter the building, facing the street …………………., with an area of gross square meters after common use of seventy-two and forty-one square centimetersof the meter (72.41), bearing the number of internal numbering one (1), after a loft area of thirty-six meters and twenty centimeters of the square meter (36.20) after the percentage corresponding to it indivisible on the whole plot and on the other commonof eight and common spaces, parts and facilities of the whole building fifty thousand and fifty hundredths of a thousand (50.5/1000), with KAEK …………………………./…../…., the objective value of which amounts to the amount of 219,158.78 euros and b) to an autcomplete and divided ground floor shop as a horizontal property, on the left as we enter the building, facing the street …………………………, with an area of gross square meters after common use of fifty-nine and twenty-five centimeters of the square withthree (55.25), bearing an internal number of two (2), after a loft with an area of twenty-nine square meters and sixty-two centimeters of a square meter (29.62) after the corresponding percentage of the whole plot and on then others common properties and common areas, parts and facilities of the entire building of forty-four millimeters and twenty hundredths of a millimeter (44.20/1000), with KAEK ……………………./…../……, the objective value of which amounts to 176,253.34 euros, which went to the second and third applicants, at a rate of 1/2 indivisible to each, by virtue of No. 1179/4-3-1997 contract of the Thessaloniki notary ……………………………. and was transcribed in the transfer books of the Thessaloniki Mortgage Office in volume …………… and number …………..
Also, it was assumed on the one hand that the applicants have mostly paid off the defendant's claim against them [ref. from 26-04-2021 private agreement for the settlement of overdue debts from the contract No. ………………………….. in dispute] on the one hand, there is no conversion of the above note into a mortgage, while the value of the properties owned by the first of the applicants is sufficient to secure the balance of the claim of the latter. Consequently, the present application must also be accepted as well-founded in substance and the defendant, due to its defeat, must be sentenced to pay part of the court costs of the applicants, following the latter's legal request (Articles 176 and 191 § 2 KPolD), as specifically defined in the operative part of the present.
FOR THOSE REASONS
JUDGES the application in absentia.
ACCEPTED The application.
RECALLS in part the 23915/2000 decision of this Court (interim measures procedure), by which the petitioner was granted the right to register a mortgage note, up to the amount of ………………… euro in properties fully owned by the second and third applicants, to secure interest of her claim, which was described in the reasoning and specifically in the properties: a) in an independent and divided ground floor shop as a horizontal property, on the left as we enter the building, with a facade on the street ……………………., an area of square meters gross after the common use of seventy-two and forty-one centimeters of the square meter (72.41), bearing internal numbering number one (1), after a loft area of thirty-six meters and twenty centimeters of the square meter (36.20) after the corresponding of an indivisible percentage on the entire plot and on the other jointly owned and shared spaces, parts and facilities of the entire building of fifty thousand and fifty hundredths of a thousand (50.5/1000), with KAEK ………………………/… …/…….. and b) in an independent and divided ground floor shop as a horizontal property, on the left as we enter the building, with a frontage on the street ………………………….., with an area of square meters gross after of the common use of fifty-nine and twenty-five centimeters of the square meter (55.25), bearing an internal numbering number of two (2), after a loft area of twenty-nine square meters and sixty-two centimeters of the square meter (29.62) after the corresponding of an indivisible percentage on the entire plot and on the other jointly owned and shared spaces, parts and facilities of the entire building of forty-four millimeters and twenty hundredths of a millimeter (44.20/1000), with KAEK ………………………… ../………/……………., which went to the second and third of the applicants, by a percentage of 1/2 indivisible to each, by virtue of the no. 1179/04-03-1997deed of the notary public of Thessaloniki, ……………………………….. and was transcribed in the transfer books of the Mortgage Registry of Thessaloniki in volume …………………… and number ……………, which mortgage pre-notation was entered in the volume …………… and number ………… of the mortgage books of the Thessaloniki Mortgage Registry, on 9-29-2000 and has not been mortgaged, and
AVAILABLE the complete elimination of the mortgage note on the above properties.
ORDERS the applicant to pay the applicant's court costs, which he sets at the amount of three hundred (300,00) euro.
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