The Athens County Court with the no. 942/2022 Decision of on a case successfully handled by our office, cancel the Payment Order by which the objectors were ordered to pay the amount of 16,250.44 euros plus interest and costs for a claim arising from consumer loan agreement thus stopping the foreclosure process.
The objectors raised, among other things, the misuse of the GOS banking contract, according to which a clause on the extension of jurisdiction of the courts in the district of which the bank's headquarters is located is provided.
The Court, based on the submitted documents and what the attorneys suggested, decided that with the above condition, which was not the subject of individual negotiation, a significant imbalance was created to the detriment of the parties in terms of the rights and obligations arising from the contract between of the parties.
It therefore ruled that the payment order should be annulled and sentenced the defendant to pay the court costs of the appellants, which it set at the amount of 250 euros.
Next is the body of no. 942/2022 of the final Decision of the Athens Magistrate's Court.
Decision number
942/2022
THE PEACE COURT OF ATHENS
It was formed by the Justice of the Peace ……………………………, which was appointed by the President of the three-member Board of Administration of the Athens Justice of the Peace and the Secretary ………………….
He sat in public in his audience on 25 May 2022 to try the case between:
OF THE APPLICANTS: 1)……………………………….. of ………………….. and 2)………………………………. of…………………., residents of both Veria Imathia, street ……………………. No. …………………, who were represented by the attorney ………………………………..
OF KATHI ANAKOPI: Of the anonymous company with the name <<……………………………………………….>>, which is based in Athens and is legally represented, as a non-beneficiary and liable party, manager and attorneys of the claims whose beneficiary is the foreign company with the name <<………………………………………….>> based in Dublin, Ireland, which became universal successor of the anonymous banking company with the name <<………………………………>>, based in Athens and legally represented, which was represented by the attorney-at-law …………………… ………………..
The objectors request that their objection from 8-12-2021 be accepted (filing report no. 84151/1776/2021), which was determined to be discussed during the trial, mentioned at the beginning of this.
During the discussion of the case, the attorneys of the parties, after developing their claims, requested that what is mentioned in the minutes and their proposals be accepted.
STUDY THE LITERATURE
THINK AGAINST THE LAW
The objectors with their contested objection and for the reasons specifically mentioned in it, request the annulment of no. 12444/2021 Payment Order of the Athens Magistrate's Court, by which he was obliged to pay the defendant the amount of 16,250.44 euros plus interest and expenses as well as the check for payment dated 16-11-2021 notified to them by the defendant , located below copy A' of the executory inventory of the above payment order. Finally, he requests that the defendant be ordered to pay their legal costs.
The judicial objection, in respect of the part with which the cancellation of the payment order is requested, is an objection based on article 632 of the Civil Code, and in the part with which the cancellation of the check to be paid is requested, it is an objection against the execution, based on the article 933 KPolD. The two objections are admissibly piled up in the same document, and art. 632 par. 6 of the Civil Code (as it was replaced by the fourth Article of Article 1 of Law 4335/23-7-2015) and with this content and request, admissible and competently brought for discussion before this Court, as a matter of law and by competent authority (articles 632 par. 1 and 6,933 par. 3, 584 and 42-44 of the Civil Code), according to the provisions of property disputes (articles 632 par. 2, 937 par. 3 and 614 ff. of the Civil Code). The objection has been filed legally and within the deadline: a) the first of article 632 of the Civil Code, given that the objection against the payment order was served on the defendants on 9-12-2021, as appears from the no. 8129E/9-12-2021 service report of the bailiff of the Court of Appeal of Piraeus ……………………. while the challenged payment order was notified to the objectors on 23-11-2021, as appears from the nos. 4209 and 4210/23-11-2021 service reports of the bailiff of the Court of Appeal of Thessaloniki ………………………………………. and b) the second of article 933 of the Civil Code due to non-expiration of the deadline of article 934 par. 1a of the Civil Code. Therefore, the objection in question must be further examined according to the legal and substantive validity of its reasons.
From all the documents presented and invoked, public and private, some of which are taken into account for direct proof and others for the conclusion of judicial presumptions, as well as from the lessons of common experience and logic, which are taken into account ex officio (articles 336 par. 4 KPolD), the following was fully proven: The defendant-opposed company delivered to the objectors a copy of the first enforceable copy of its payment order number 12444/2021 of the Athens Magistrate's Court, by which they were obliged to pay the defendant in solidarity and in the entire amount of 16,250.44 euros plus interest and costs. The said payment order was issued on the basis of the contract from 1.9.2014 for the granting of a consumer loan, signed between the original lender - an anonymous banking company with the name<<……………………..>> and the defendants , the additional acts from 19.10.2015 and 8.3.2017. Due to overdue debts of the objectors, the disputed contract was terminated with an extrajudicial declaration - termination of the defendant. which was served on the objectors and the latter were asked to pay the entire debt, i.e. the amount due up to that date, plus interest and costs. Furthermore, with regard to the jurisdiction of the Justice of the Peace on a request to issue payment orders, articles 22, 23, 25 par. 2 and 33 of the Civil Code apply. In particular, with regard to the current special jurisdiction of the contract (Article 33 of the Civil Code), it is noted that differences from the rights arising from a legal act can be brought to the court in the district where the place of establishment of the legal act or the place where the service must be performed is located. Besides, according to the provision of article 43 of the Civil Code, the agreement of the parties, by which an ordinary court becomes competent for future disputes, is valid only if it is in writing and refers to a certain legal relationship, from which the disputes will arise. However, the clause contained in a bank's GOS, which has as its object the granting of jurisdiction for all disputes, which will arise from the loan contract, which the bank concludes with its customer, in the court in the district in which its seat is located bank, impose on the customer-consumer the obligation to submit to the jurisdiction of a court, which may be distant from his place of residence. This can make it difficult for the client to appear before the Court, ultimately discouraging him and leading him to abandon his defense, especially in disputes involving limited sums and clients who live in a remote area in relation to the headquarters bank and whom (customers) the Court must, above all, take into account, since the customers of this category are those who are adversely affected by such a clause, given that the costs required can lead him to the above waiver of his defense . On the contrary, such a clause allows the user of GOS (bank) to collect in a less expensive way all the disputes concerning its activity in the courts, in the region of which its seat is located or even gives it the possibility to choose the court completely arbitrarily , which suits his interests, because for example it gives him an advantage in determining jurisdiction, but this court is not connected in any way to the dispute in question. Such an extension of jurisdiction clause, which is included in a contract between a bank and its customer without being the subject of individual negotiation, as required by article 42 of the Civil Code and which grants jurisdiction to certain courts, which exclusively serve the interests of the bank, is considered abusive and therefore invalid according to article 2 par. 5 of Law 2251/1994, since, without responding to the reasonable interest of the supplier, it creates, despite the principles of good faith, a significant imbalance to the detriment of the consumer between the contractual rights and obligations of the contracting parties (AP 1219/2001 Law, AP 1030/01, EfD 109/2007, Law, EfPat 501/2004, AhNom 2005.397, EfPir 931/1996 EEmD 1997. (51), EfTh 1687/2011, EEmD 2011 1104, EEmpD 2012/389, Prime Ministerial Decree 8007/2001, Arm 2002. 747 and IrPeir 961/2013, Law). This Court considers that the above imbalance to the detriment of the consumer also occurs in the conclusion of a clause of concurrent jurisdiction of more than one court, as again this agreement is not a product of negotiation, but any refusal of the consumer to conclude it, nullifies the conclusion of the contract . Moreover, in this case too, the balance of the parties is disturbed in the same way, since the supplier (bank) chooses, in an arbitrary manner and in essence circumventing the provisions for the natural judge, the court which suits its interests and serves absolutely his needs.
Furthermore, the objectors with the fifth ground of objection invoke the abuse of certain terms of the contract, including the clause of extrapolation of jurisdiction, which stipulates that any dispute between the contracting parties is subject to the jurisdiction of the Courts of Athens, a clause that is appreciated by the deterrents as abusive. The above reason is legitimate, based on article 2 par. 6 of Law 2251/1994 and the other provisions mentioned in the main consideration and must be examined further and according to its substantial validity. From all the evidence presented above it emerged that by virtue of the no. 10.12 of the disputed contract, this Court became competent locally for any dispute arising from this contract. However, with this condition, which was not subject to individual negotiation, as required by article 42 of the Civil Code, a significant imbalance is created to the detriment of the parties between the contractual rights and obligations of the parties. And this, because, on the one hand, the objectors are permanent residents of Veria Imathia, that is, in an obviously remote area in relation to the seat of this Court and, therefore, the difficulty they face in attending this Court is self-evident and a given, capable of discouraging them and even lead them to abandon their defense, combined with the travel expenses required from one place to another. On the other hand, the choice of each bank to choose the Court of Athens, i.e. its seat, and to exclude the Court of the residence of the objectors, the place of drawing up the contract (as it appears from the contract) and the place of fulfillment of the provision - which, based on the circumstances and the nature of the debt relationship (AK 320), it is concluded, in the judgment of the Court, that it is also Veria, since the owners of the credit products fulfill their contractual obligations in branches of the local bank their residence and apparently do not go to the headquarters of the central branch of the creditor bank – it is an arbitrary choice, since it is made without any reasonable interest in this regard, given that the organization of the legal support of the defendant could in no way be considered difficult, taking into account mainly the financial size of the defendant and its ability to have a significant legal representation in all the cities of Greece where it maintains branches, based on the lessons of common experience and logic. Accordingly, the relevant condition on the basis of which the Judge of this Court becomes competent to issue the impugned payment order, and which without the relevant condition would not have such competence, as intended, creates a significant imbalance to the detriment of the objector and contradicts par. 6 of article 2 of Law 2251/1994. Consequently, in accordance with the above, the relevant reason must be accepted as substantively valid - and, therefore, it becomes unnecessary to examine the other reasons - and the contested objection must be accepted and the contested order annulled. Finally, the court costs of the objectors, following their relevant request, which was submitted with their considered objection, must be imposed at the expense of the defendant ('articles 176 and 191 par. 2 of the Civil Code) in accordance with the specific provisions of the ordinance.
FOR THOSE REASONS
Judges opposition of the parties.
He accepts the objection.
Cancels the no. 12444/2021 payment order of the Athens Magistrate.
He orders the defendant to pay the court costs of the objectors, which he sets at two hundred and fifty (250) euros.
Judged, decided and published in Athens at an extraordinary public meeting in his audience on 11 OCT. 2022
THE JUDGE THE SECRETARY
(SIGNATURE) (SIGNATURE)
Thomas Steph. Summer
MDE lawyer
English 
Greek 
French 
Chinese 
German