Objection against Auction Accepted – No. 286/2024 Decision of the Court of First Instance of Kilkis

With the no. 286/2024 Decision, in a case that our office successfully handled, the Single-Member Court of First Instance of Kilkis accepted the Objection, with which the debtors requested the cancellation of the seizure against their residence.  

The Court declared, according to the law, the absolute invalidity of enforcement actions, assuming the alleged reason for violation of the provision of article 925, paragraph 1, of the Code of Civil Procedure, and canceled the expedited auction.

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The following is the number. 286/2024 Decision of the Court of First Instance of Kilkis

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DECISION NUMBER 286/2024

COURT OF FIRST INSTANCE OF KILKIS
SPECIAL PROCEDURE FOR PROPERTY DISPUTES
DECISION NUMBER 286/2024

(Objection Filing Number: 197/ΕΙΜ/27/27-3-2024)
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF KILKIS

It was formed by Judge Stergios Dritsa, First Instance Court, who was appointed by
the President of the Court of First Instance of Kilkis and the Secretary …………………………..
It sat in public in its audience on September 4, 2024 to try the
from 27-3-2024 and with filing number 197/ΕΙΜ/27/27-3-2024 opposition between:
OF THE COUNTERPARTS: 1)……………………………………….of ………………………………, resident
……………………………………….., with VAT number: …………………………………., 2) ………………………………………….of
…………………………………….., resident of …………………………., with VAT number: ………………………, who
represented by their attorney Thomas Kalokyris, Attorney at Law
of the Thessaloniki Bar Association, with AM DSTH: 11982, who testified
proposals.
OF THE OWNER: An Anonyme company with the name “……………………………………………………………….”,
based in Athens, …………………………………………, number ………………………………………… and
is legally represented, with VAT number: ………………………………., which was represented by
attorney-in-fact of ………………………………………… Attorney of the Law Firm
Kilkis Association, with AM DSK:………………………., who submitted proposals.
The objectors request that the application be accepted from 27-3-2024 and with filing number
197/ΕΙΜ/27/27-3-2024 their opposition, which had been identified for discussion on the
today's court hearing.
During the discussion of the case, the attorneys for the parties requested
to accept what is stated in the minutes and their proposals.

AFTER STUDYING THE LITIGATION
THOUGHT IN ACCORDANCE WITH THE LAW

With their present opposition, the opponents request, for the reasons stated
states in their petition, that the check from …………………… to be cancelled
payment, the report of compulsory seizure of the number ………………………………/2024
bailiff of the district of the Court of Appeal of Thessaloniki, based in
Kilkis …………………………………. and the number …………………………. extract of
of this report. They also request that the defendant be convicted in their court cases
costs. The above objection is admissibly brought for trial before this Court, which is competent as to the matter (933 par. 1 sub. a, because the executor
title on the basis of which the execution is accelerated has not been issued by the
Justice of the Peace) and by location (933 par. 3 sub. b of the Criminal Procedure Code, as the court of
region of the place of seizure, as it concerns execution for
satisfaction of financial claims), to adjudicate this in the specific case in question
procedure for property disputes under articles 591 and 614 et seq. of the Code of Civil Procedure (937
par. 3 of the Code of Civil Procedure). The objection has been filed within the deadline, on 3-4-2024 (as
results from the court service report numbered …………………../3-4-2024
curator of the Athens Court of Appeals district based at the Court of First Instance
Athens …………………………..), i.e. within 45 days from 23-2-2024, when
service was made on the objectors numbered ………………………
report of forced seizure, of the bailiff of the district of
Court of Appeal of Thessaloniki with headquarters at the Court of First Instance of Kilkis …………………………………,
given that the grounds for opposition concern defects in the drafting of the
of the check to be executed until the publication of the extract thereof
seizure report according to articles 955 and 995 of the Civil Procedure Code (934 par. 1a of the Civil Procedure Code).
Therefore, the objection must be formally accepted and further examined as
towards the admissibility, the definiteness and the legal validity of her words.
II. According to the provision of article 925 par. 1 of the Code of Civil Procedure: “The general or special
The beneficiary's successor cannot initiate or continue the forced
execution before they are notified to the person against whom the execution is directed, the
check and the documents that legitimize it.” From this provision it can be concluded that the
universal or special successor of the beneficiary must notify the defendant of the
execution of a check for execution and the documents that legitimize it, namely the
documents, public or private, which prove the succession. This obligation
is required both for the commencement and for the continuation of the execution that has begun
from its licensor, it is independent and must be done even when
the defendant in the execution otherwise obtained knowledge of the succession (AP 1343/2022
PREFACE, EAST CRETE 210/2023 PREFACE, ATH 137/2023 PREFACE, ATH
AEGEAN 61/2023 PREFECTURE, EF ATH 8/23 PREFECTURE and Yessios – Faltsi P.
Compulsory Execution – General Part, 1998 edition, p.214,
Kerameas/Kondylis/Nikas/Mazis Criminal Procedure Code 2 article 925 number 1, Margaritis M. –
Margariti A. Code of Civil Procedure article 925 number 2). The violation
of article 925 par. 1 of the Code of Civil Procedure entails the invalidity of the execution regardless
damage, since the phrase of the law “may not commence or continue
"forced execution" is equivalent to the threat of nullity (AP
1343/2022 PREFECTURE, EAST CRETE 210/2023 PREFECTURE, AEGEAN 61/2023
PREFACE and Keramea/Kondyli/Nika/Mazi CPC2 article 925 number 1).
III. The first ground of opposition seeks the annulment of the contested decisions.
execution acts, because the defendant in the opposition, as a special successor to the original
lender of a public limited company with the name “……………………….'', in violation of the provision of article 925 par. 1 of the Code of Civil Procedure, did not notify the objectors with the contested check for payment or the also contested seizure report any legal document, from which either the special succession to the claim from the original loan agreement or the assignment of the management of this claim by the defendant
opposition. The above reason is admissibly raised with the present opposition and is definite and legal, based on the provision of article 925, paragraph 1 of the Code of Civil Procedure, in accordance with what is set out in the above under II major and must be further examined as to its substantive validity.
IV. For its part, the defendant filed the opposition, with the legal and timely
submitted proposals and with those registered in the same numbers
present minutes, statements made at the hearing by the attorney-at-law of
(591 par. 1 c and e of the Code of Civil Procedure), some of which are particularly mentioned
below, but without the express reference to the said documents conferring on
these have increased evidentiary value compared to the other relied on and
documents submitted by the parties, for which no specific mention is made,
from the lessons of common experience taken into account by the present
Court ex officio and without proof (336 par. 4 and 591 of the Civil Procedure Code)
the following facts were proven: By virtue of the no.
………………………… loan agreement the objectors concluded an agreement
mortgage interest-only loan with the banking company with the name “…….”, pursuant to which their last
granted a loan of 73,500 euros. Due to non-repayment of the above loan
On 22-3-2019, the above lender issued the following against the defendants:
number ………./2019 Payment Order, pursuant to which the latter
were ordered to pay the amount of 55,975.07 euros as capital, with the
legal interest from 15-9-2018 until full repayment and the amount of
1,866 euros for legal costs. On 7-11-2023, the objectors were served with the
from 2-11-2023 a check for payment, pursuant to which they were ordered to
paid to the special purpose company with the name “……………………………………….”, which acted as a special successor of the banking company with
the name “…………………………” and had assigned the management of the
of its claims from the disputed contract to the defendant public limited company
under the name “……………………………………………….”, the total amount of 58,141.07 and in particular: a) the amount of 55,975.07 euros as capital, with legal interest from 15-9-2018,
compounded every six months and with the legal default interest, until full payment
repayment, b) the amount of 1,866 euros for legal costs of issuing the above
Payment Order, with legal interest from its service from 28-3-2019
check to be paid and until full payment, c) the amount of 100 euros
for obtaining a copy of the register, issuing a copy of the first enforceable copy and
expense of drafting and delivering a check for payment from 28-3-2019, with the
statutory interest from the date of its presentation from 28-3-2019 of the check for payment and until
the full repayment, d) the amount of 100 euros for the expense of drafting and delivering the check for payment dated 7-10-2022, with the legal interest from the date of delivery
from 7-10-2022 of the check to be paid and until full payment, e) the amount
of 50 euros for the preparation of the check for payment from 2-11-2023, with the legal
interest from the date of presentation of the check for payment dated 2-11-2023 until
full payment, f) the amount of 50 euros for the cost of its service from 2-11-
2023 check payable, with legal interest from its delivery from 2-11-
2023 check payable and until full payment. For the satisfaction
of the above claim, the defendant filed the opposition on 23-2-2024, by virtue of
number ………………….. report of compulsory seizure of the judicial
district curator of the Court of Appeal of Thessaloniki, based in Kilkis
………………………… and the extract numbered ………………………… thereof,
compulsory seizure of the following properties owned by the appellants: …………. The above properties are to be sold at an electronic auction scheduled to be held on ………………….. Wednesday from 10:00 a.m. to 12 p.m. before the Notary Public of Kilkis ………………………….., with a first bid price for the above-mentioned property
a apartment the amount of ………………………… euros and for the above mentioned under b
warehouse the amount of ……………… euros, as shown in the relevant printout of
auction publication website that the objectors rely on and
3. It was also shown that together with the above from 2-
11-2023 check for payment and report number ………………………………….
of compulsory seizure, the defendants were notified of the execution and already
objecting to the following documents: copy of number ……………………….
business receivables management contract between the specialist company
purpose with the name “……………………………………..” and the limited liability company
with the name “……………………………….”, b) copy of 24-11-2022
agreement supplementing the above management agreement between them
contracting parties, c) copy of the contract number …………………………………
article 10 par. 8 of Law 3156/2003, on the transfer of claims from the
a public limited company with the name “…………………………………...” in
company with the name “………………………………..”, d) a copy of the 24-
11-2022 contract supplementing the above transfer contract between
of these contracting parties. However, apart from the review of the above
documents do not indicate the transfer of the claim against the objectors
from the aforementioned ………………………… housing contract
interest-only loan, from the banking company with the name
“………………………” to the company with the name “…………………………………”, but neither the assignment by the latter of the management of the receivables
from the above contract in the expediting execution procedure and
already the defendant, a public limited company with the name “……………………………………………………….”.
Additionally, it is not attached to the contested check for payment.
but also in the contested seizure report a list of claims
which were transferred from the banking company with the name
“…………………………………………...” to the company with the name “……………………………………………….”, nor a list of the claims assigned for management by the
lastly to the public limited company with the name “………………………………………..”, so that
the transfer thereof and the assignment of its management are proven. The above
arise in particular from the copy of the check for payment from …………………….
and the copy of the compulsory seizure report number ………………………………
which the opponents claim to present, while no evidence is provided
It follows that the totality of the entries that the defendant in the opposition invokes and
submitted with its proposals has been communicated to the objectors. Therefore,
it does not appear that the defendants have been notified of the enforcement procedure and
already withholding those documents that prove the legality of
expediting the execution procedure and already the opposition and the relevant
The first ground of opposition must be accepted as being well-founded in substance. It is unnecessary to
investigation of the other grounds of opposition, which also lead to annulment
of the alleged enforcement actions.
VI. In light of the above, the present objection must be accepted and
the check for payment from …………………, numbered ………………….. is cancelled.
compulsory seizure report of the bailiff of the district of
Court of Appeal of Thessaloniki with seat in Kilkis ………………………………….., number
……………………………….excerpt from the above forced seizure report as well as
and any subsequent and continuous act of coercion
execution. The defendant's opposition must also be condemned, due to its defeat
(176 CPC), to the legal costs of the defendants, as specifically provided
in the operative part of this.

FOR THOSE REASONS

JUDGES opposition of the parties.
ACCEPTS the objection.

CANCELLED the check for payment from………………………………, the number ………………………/……………………….. report of compulsory seizure of the bailiff of the district of the Court of Appeal of Thessaloniki with headquarters in Kilkis …………………….., the number ……………………………….. extract of this report as well as any subsequent and continuous act of compulsory execution.

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Thomas Kalokiris 

Supreme Court Lawyer