DECISION NUMBER
45/ 2020
THE COURT OF PEACE OF RODOLIVOS
IT WAS CONSTITUTED by Justice of the Peace Andreadou Martha, who was appointed by Act of the President of the Court of First Instance of Serres, and by Secretary Kallirroi Vakirtzi.
It sat in public in its audience on 12-12-2019, Thursday at 10.00 to try the following case between:
OF THE APPLICANT: ………………… resident of …………… Serres, who was represented by his attorney-in-fact Thomas Kalokiris.
OF THE PARTICIPANTS in the trial of creditors and guarantors who became parties after their legal summons (articles 5 par. 1 of Law 3869/2010 and 748 par. 2 of the Code of Civil Procedure) and are present as follows: […]
The applicant, with his application dated 20-11-2018 and no. cat. 18YP/20-11-2018, which he addressed to this Court and for the reasons he sets out in the relevant pleadings, requested that his requests be accepted.
DURING THE DISCUSSION of the case, the attorneys for the parties who appeared presented their arguments and requested that what was stated in the minutes and their written submissions be accepted.
AFTER STUDYING THE LITIGATION
CONSIDERED ACCORDING TO THE LAW
[…] Article 4, paragraph 1 of Law 3869/2010, before the amendment of the above article by Law 4335/2015 (Article 1, subparagraph A.4), stipulated that the application for debt settlement provided for by its provisions must contain, among other things, a list of creditors and their claims by capital, interest and expenses. After the amendment, Article 4, paragraph 1 stipulates that “the debtor’s application must include his creditors and their claims, analyzed in accordance with the provisions of paragraphs 4 and 4a of Article 2 of this law” and Article 2, paragraph 4a states that "The State, the Local Government Organizations of the first and second degree (LGOs), their legal entities and the Social Security Organizations are obliged, upon submission of a relevant request by the debtor, to deliver to him within the above deadline a detailed statement of: a) the confirmed debts to the Tax Administration in accordance with the Tax Procedure Code (TPC). the Public Revenue Collection Code (PRC), broken down into capital, surcharges and late payment interest, also indicating the late payment interest rate". From the above provisions it follows that the necessary content of the debt adjustment application is the list of claims to be adjusted, broken down into principal, interest and expenses and in the case of debts confirmed by the tax administration, the list of claims to be adjusted, broken down into principal, surcharges, late payment interest and late payment interest rate. Furthermore, the manner in which each claim arose must be stated, i.e. the legal relationship from which it arises, in order to be able to examine whether or not the claims to be adjusted fall within the scope of application of Law 3869/2010 (See ΕιρΑΘ 20/2011 ΤΝΠ “NOMOS”, I.VIENERI-Θ.KATSA Application of Law 3869/2010 for over-indebted natural persons, p. 242 et seq. Nomiki Bibliothiki, 2016). In article 9 par. 2 of Law 3869/2010, inter alia, stipulates that: “A decision of the Bank of Greece shall define the procedure and criteria taken into account for determining the maximum repayment capacity of the debtor and for determining the amount that creditors would receive in the event of forced execution, as well as for determining the potential loss of creditors”. Furthermore, with decision no. 54/2015 (Government Gazette B 2740/16-12-2015) of the Executive Committee of the Bank of Greece, which was issued in accordance with the above legislative authorization, it was stipulated that “A. The determination of the maximum repayment capacity of the debtor is based on his current and future capacity to repay the entire debt based on reliable and realistic assumptions that also take into account those referred to in article 5 par. 3 of the law. 3869/2010 "reasonable living expenses" of the debtor and his dependent family members, based on the methodology below... A1....2. For this purpose, the debtor submits, together with the application of article 4 par. 1 of law 3869/2010, the duly completed standard form of the Annex, which constitutes an integral part of this Decision. It incorporates: a) the details of the debtor's income declared by him in the application of article 4 par. 1 of law 3869/2010 and b) the living expenses of the debtor and his dependent family members categorized in the groups of "reasonable living expenses" provided for in article 5 par. 3 of law 3869/2010 and in any other expenses". Also, according to the provision of article 254 of the Code of Civil Procedure: “The court may order the resumption of the discussion, which has been declared closed, when during the study of the case or the conference, gaps or doubtful points arise that need to be completed or explained, or when it is necessary to conduct an autopsy, expert opinion or examination of the parties in court. The decision must mention the specific issues that are the subject of the repeated discussion. This discussion is considered a continuation of the previous one. In the case of articles 237 and 238, the decision to resumption of the discussion may also, if it is deemed absolutely necessary to examine witnesses in court, order the examination of one witness from each side during the repeated discussion.” This provision also applies to the procedure of voluntary jurisdiction according to article 741 of the Code of Civil Procedure. The power granted by the provision also includes the right of the court to order, among other things, the production of documents or other evidence necessary for its judgment, if the party neglected to produce them (I. Venieris Application of Law 3869/2010 on over-indebted legal entities, Law Library 2013, pp. 413 and 464 ff. and Ch. Apallagaki Code of Civil Procedure Interpretation by article, Law Library 2013, p. 576, Eir.El. 1/2011, Eir.ATH.57/2012, Eir. Hal. 65/2012 TNP DSA "ISOKRATIS"). Thus, in the event that the table provided for in the above model of the Bank of Greece decision is not submitted together with an application under Law 3869/2010 which includes a request for exemption from the liquidation of the applicant debtor's main residence, the Court, pursuant to Article 254 of the Code of Civil Procedure, may order the resumption of the hearing in order to complete this deficiency (see EirNem 52/2017 TNP "LAW").
With the application under consideration, the applicant, citing a lack of bankruptcy capacity and a permanent inability to pay his overdue financial debts to creditors, which are mentioned in the detailed statement contained in the application, requests the settlement of his debts, with the exception of the liquidation of his described main residence, his property, in accordance with the settlement plan he submits and after taking into account his financial and family situation, which he presents in detail, with the aim of relieving him of them.
With the above content, the application is brought to this court for discussion, in the procedure of voluntary jurisdiction of articles 741 et seq. of the Code of Civil Procedure (article 3 of law 3869/2010), provided that no other application by the applicant for the settlement of his debts is pending in this Court or another Court of the Peace in the country, nor has his previous application been rejected for substantive reasons, as established after an ex officio inspection pursuant to article 13 para. 2 (see certificate of 17-6-2020 of the Secretary of the Rodolivos Court of the Peace with reference also to the certificate of the Secretary of the Athens Court of the Peace with reference to no. protocol 801/17-6-2020). It is admissible for discussion after: a) the timely filing with the secretariat of this court of the documents of art. 4 par. 1 and 2 of Law 3869/2010 (as amended by the provisions of Law 4336/2015) and of Joint Ministerial Decree No. 7534/2015 (Government Gazette B 1794/20-08-2015) (see pre-filing report of the Secretary of the Rodolivos Magistrate's Court dated 20-11-2018), b) the timely and proper service of the application to the participating creditors and guarantors with the appointment of a court for its discussion, with an invitation to submit their views on the debt settlement plan within an exclusive period of one month from the service of the application pursuant to art. 5 par. 1 of the law. 3869/2010, c) the failure of the pre-trial settlement, given that it was not reached during the first hearing during which a temporary order was granted (see the temporary order of Justice of the Peace Rodolivos dated 25-1-2019). However, the application under consideration should be rejected as inadmissible due to its vagueness insofar as the applicant requests that his debts to the Greek State be settled. In particular, the applicant's statement of debts does not indicate the cause of each of the applicant's debts so that both the identity of each debt can be established, but also whether this debt belongs to those that fall within the scope of regulation of Law 3869/2010. Furthermore, the application is definite and lawful, based on the provisions of articles. 1, 4, 8, 9 and 11 of Law 3869/2010, since based on the facts set out therein, the conditions for the applicant to be subject to the regulation of the law are met, since he is a natural person, lacking bankruptcy capacity, his debts are not included in the exemptions of the regulation and he has already fallen into a state of permanent inability to pay his overdue debts. Therefore, the application in question must be further examined as to its substantive validity, after the payment of the legal fees for the hearing and the payment notes for the hearing provided for in article 61 of Law 4194/2013.
From the sworn testimony of the applicant's witness, contained in the minutes of the public session of this Court, from all documents, without exception, lawfully invoked and presented by the parties, which are taken into account, both for direct proof and for the inference of judicial presumptions, which are taken into account in the present proceedings even if they do not meet the conditions of the law, in combination with the lessons of common experience and logic, which are taken into account ex officio by the Court and from what was developed orally and in their proposals by their attorneys and in general from the entire discussion of the case, the following emerged:
The applicant was born in the year …., was married to …….., who died in the year 2016 and is the father of three adult children of ……….., …………. and ……….. From the year 1997 to the year 2006 he maintained a business ……… in ………. Serres. The applicant and his deceased wife were already retired in the year 2013 (see income from pensions shown in their tax returns). In the previous years the applicant obtained the following income as declared before the tax authority {see income tax returns and statements of the corresponding years, deducted corresponding income taxes of the corresponding years): In the year 2004 7,460.64 euros, in the year 2005 6,408.37 euros, in the year 2006 5,658.89 euros, in the year 2007 4,604.88 euros, in the year 2013 4,915.10 euros, in the year 2014 4,915.04 euros, in the year 2015 4,863.78 euros, in the year 2016 5,261.59 euros, in the year 2017 4,676.76 euros and in the year 2018 4,812.60 euros. The applicant currently receives a pension from the O.G.A. of approximately 400.00 euros per month. For the years 2008 to 2012, no data was provided regarding the applicant's income.
The applicant's wife was also a pensioner and, as mentioned, passed away in 2016. She obtained the following income as declared before the tax authority (see income tax returns and statements for the respective years, deducting the corresponding income taxes for the respective years): In 2004, 4,312.51 euros, in 2005, 5,496.22 euros, in 2006, 5,109.76 euros, in 2007, 6,623.08 euros, in 2013, 6,204.18 euros, in 2014, 6,045.12 euros and in 2015, 6,045.14 euros. It should be noted that for the year 2013, an amount of 2,380 euros was declared by the applicant's wife in code 781 of her tax return, which concerns amounts derived from the disposal of assets, loans, donations, inheritances, etc.
The applicant resides in a privately owned detached house, measuring 125 sq.m., located in ….. Serres. He is facing serious cardiac and respiratory problems and for this reason is now bedridden and in need of oxygen therapy. The applicant's living expenses exceed the amount of 400.00 euros and these include the costs of his food, water, heating and electricity bills, his medical care, the coverage of his tax obligations and his travel. The applicant is assisted in kind in the cost of his daily care by providing care to his children and in particular his son …… and his wife. Furthermore, during the years 2015-2016 the applicant's living expenses increased, as his wife was diagnosed with cancer and ultimately passed away in 2016.
In a period prior to the year from the filing of the legal application, the applicant had assumed the following debts, which both those to unsecured creditors and those to secured creditors by law, are considered overdue upon notification of the application and are calculated at their current value at the time of notification of the application (see in Cretan "Regulation of debts of over-indebted natural persons" p. 99), with the exception of claims that are secured by a special privilege or real right, the interest on which continues at the interest rate of a current debt until the time of issuance of this decision (art. 6 par. 3 law 3869/10). Specifically: The absentee has assumed against the first participating creditor with no. 105/2007 contract, consumer loan with his wife as guarantor, with a balance due of 18,941.28 euros, of which 13,884.16 euros in interest. The initial amount of the loan amounted to 5,500 euros and was to be repaid in 60 monthly installments with the first installment in February 2007. After her death, the guarantor was replaced by her intestate heirs, namely the applicant and his children. The last current installment for this loan amounted to 117.30 euros.
The applicant has undertaken a loan agreement with the second participating creditor under account number 100001260701/2005 as the primary debtor with his son …… as guarantor, with a balance of 7,112.12 euros. This loan, with an initial amount of 13,840.00 euros, was first taken out for the purchase of a car and it was agreed to be repaid in 60 monthly installments. The last current installment for this loan amounted to 257.10 euros. The purchase of the car was carried out with retention of ownership by the creditor. Payments for the above loan appear to have been made up to the year 2008. In 2012, following the issuance of a court decision, the purchased vehicle was sold without the price being used to repay the balance of the loan. In 2017, the applicant made additional payments towards his debt.
As for the third participating creditor, the evidence provided did not reveal the amount of the applicant's debts to it, which were incurred more than a year after the application was filed. The applicant's debt included in the application concerns an active electricity supply contract between the applicant and the participant. The amount of the debt referred to in the application (2,223.38 euros) concerns the period up to 10-7-2018, i.e. it also includes debts arising from the consumption of electricity within the year after the application was filed. Furthermore, the amount of the debt appears to have been settled (see printout from the participant's computer program), and the amount of the applicant's electricity expenses referred to in the application is not specified as to whether it also includes the settlement of the applicant's debt. The applicant did not provide accounts of the third creditor in order to clarify and prove his claims, while the testimony of his witness does not indicate the amount of the debt to the creditor that was incurred one year before the filing of the application. For this reason, the application should be rejected insofar as it seeks to settle his debts to the third participant as inadmissible due to its vagueness, which vagueness was not supplemented by the applicant's proposals and the evidence provided. It should be clarified at this point that the participating creditor did not provide a statement of debts to the applicant with an analysis of them by capital, interest and expenses, however, such a thing is not provided for in paragraph 4 of article 2 of Law 3869/2010, which concerns credit institutions. Furthermore, given the very small percentage that this debt could constitute in relation to the applicant's total debts, it is not considered that there is a question of rejecting the entire application.
Furthermore, the objection of the third participant regarding the applicant's fraudulent entry into a state of permanent insolvency should be rejected as inadmissible due to its vagueness. In particular, the third participant claimed that the applicant, while including in his living expenses the amount of 80.00 euros to cover his electricity costs, nevertheless did not pay this amount monthly to the participant, nor did he pay any amount in part, resulting in accumulating debts towards the participant of 2,223.38 euros. This objection, however, is raised vaguely as it is not stated what period of time the above debt of the applicant concerns, nor did this period arise from the evidence presented, so that the Court can diagnose whether the applicant fraudulently failed to pay the electricity bills.
The applicant's income compared to his overdue debts from the above loan agreements does not allow him to meet the service of the main volume of his debts. This inability is due to the amount of loans he has received as well as the amount of monthly installments required to service them in combination with the necessary living expenses required for himself and his family. This negative relationship between his liquidity and his debts during the current period is not expected to improve, at least in the near future, due to the negative economic situation, his age, his health status and his constantly increasing loan obligations due to the burden of the loans with default interest, as a result of which he cannot meet the payment of his overdue debts. Therefore, in the case of the applicant, there is a permanent and ongoing inability to pay the overdue debts to his creditors.
The applicant's assets include: 1. Ownership of a plot of land, area 312 sq.m., located in …….Serres with the house on it of area 125 sq.m. with year of construction in 1981. The applicant acquired ownership of the above property by virtue of the No. ….. purchase and sale contract of the Notary Phyllidas Ioannis Margaritis, legally registered. The above property constitutes the applicant's main residence for which he has submitted a request for its exemption from liquidation. Its objective value amounts to 23,070.00 euros, as stated in the administrative determination act ENFIA of the year 2018. The applicant provides, as proof of the objective value of his residence, a calculation sheet for the value of special buildings with objective criteria, where the objective value is calculated at 16,250.00 euros, however, the above calculation concerns the calculation of the value of agricultural and livestock buildings and not the calculation of the objective value of the residence. 2. The ownership of a plot of land with an area of 501 sq.m. in the location "…..." of the Draviskos area of Serres. The applicant acquired ownership of the above property by virtue of the no. ….. purchase and sale contract of Notary Phyllidas Ioannis Margaritis, legally registered. The value of the above property does not exceed its objective value, namely the amount of 5,010.00 euros. 3. An undivided 25% percentage of ownership of a plot of land with an area of 140 sq.m. at the location "…..." in the Draviskos area of Serres. The applicant declares that he acquired the above property as an heir of his parents without having accepted the inheritance. The commercial value of the above property does not exceed its objective value, namely the amount of 350.00 euros. 4. The ownership of the registration number….. car brand FORD with first registration year 1991. The applicant has put the above car into immobility on 28-12-2017. Its value due to its age is very small.
The assets listed in items 2-4 above, because they are not likely to generate purchasing interest, nor will they yield a reasonable price due to their low value, to satisfy the applicant's creditors, taking into account the costs of the sale process (liquidator's fee, publication costs, etc.), are not considered suitable for sale. Therefore, the applicant's assets are not considered sufficient to cover his loan obligations.
From the above, it can be concluded that the applicant meets the conditions for his inclusion in the regulation of Law 3869/2010, and in particular that of article 8 par. 2 and 9 par. 2, as his debt settlement plan was not accepted by his creditors. Thus, the settlement of the applicant's debts will be made in the first place with monthly payments directly to his creditors from his income, the time of which is deemed to be set at three years (article 8 par. 2 as in force), which will begin immediately from the publication of this decision (article 8 par. 2 of Law 3869/2010). As regards the more specific content of this regulation, as mentioned above, the applicant's monthly income amounts to 400.00 euros, while his living expenses exceed this amount. Therefore, the applicant is in the exceptional circumstances provided for in article 8, paragraph 5 of Law 3869/2010, and in particular the insufficiency of his income and his health problems. For this reason, the applicant's debts will be settled with zero payments to his creditors. A new hearing for the redetermination of the monthly payments of the regulation of article 8 is not considered necessary as the applicant's financial situation is not expected to change, especially due to his age and state of health.
As mentioned above, the aforementioned detached house in…… Serres is the applicant's main residence for which he submits a request for its inclusion in the regulation provided for by the provision of article 9, paragraph 2 of Law 3869/2010 for exemption from sale. The objective value of the residence amounts to 23,070.00 euros. Therefore, because a) the above property serves as the applicant's residence, b) his monthly disposable income does not exceed reasonable living expenses, as specified in paragraph 3 of article 5 hereof, increased by seventy percent (70%), c) the objective value of the above main residence at the time of discussion of the application does not exceed one hundred and eighty thousand euros and d) The applicant is a cooperative borrower, based on the Code of Conduct for Banks, he meets the conditions for his inclusion in the regulation of article 9 paragraph 2 of Law 3869/2010. The regulation of article 8 paragraph 5 will be combined with the provision provided for in article 9 paragraph 2 of Law 3869/2010. 3869/2010, since the payments of the first arrangement have not fully paid off the claims of the applicant's creditors and a relevant request is made by him (see Cretan "Settlement of debts of over-indebted natural persons" 2nd edition, p. 215). Within the framework of this arrangement of art. 9 par. 2 of L. 3869/2010, monthly payments should be set for the rescue of the applicant's main residence, with which he will pay the maximum of his repayment capacity and an amount such that his creditors will not find themselves, without their consent, in a worse financial position than the one in which they would be in the event of forced execution.
However, as it appears from the study of the case file, a table regarding the applicant's maximum repayment capacity in accordance with the provisions of decision no. 54/2015 of the Bank of Greece is not included in the application, nor is it submitted by the applicant. Therefore, in this case, since the request for exemption from the sale of the applicant's main residence was accepted, a retrial must be ordered so that during the new hearing the applicant can submit a completed table of the model of decision no. 54/2015 of the Bank of Greece regarding his maximum repayment capacity, so that the payments for the exemption from the liquidation of his main residence can be determined.
As a result of the above, the application must be accepted as well-founded and in its essence, and the applicant's debts must be regulated with the aim of his discharge by complying with the terms of the regulation, excluding the sale of his main residence, in accordance with what is specifically defined in the operative part, and the discussion must be ordered to be repeated regarding the definition of the payments of article 9, paragraph 2 of Law 3869/2010 in order to submit a table as mentioned above.
Legal costs are not awarded in accordance with article 8, paragraph 6, of Law 3869/2010.
FOR THOSE REASONS
JUDGES in the absence of the first and second participants and the guarantors.
REJECTS the application as regards the third party and the Greek State.
The application is otherwise GRANTED.
SETTLES the applicant's debts with zero payments to his creditors for three years which 8a begin in the first month after the publication of this decision.
EXCLUDES from the sale the applicant's main residence, namely the ownership of a plot of land, area 312 sq.m., located in .... Serres with the house on it, area 125 sq.m., year of construction 1981.
ORDERS the resumption of the discussion regarding the definition of the payments of article 9, paragraph 2 of Law 3869/2010 for the exemption from the liquidation of the applicant's main residence, in order for the applicant to submit the completed table of the model of decision no. 54/2015 of the Bank of Greece regarding his maximum repayment capacity.
JUDGED, decided and published in Rodolivos and in the audience of the Court of Peace, in an extraordinary public session on 2020, of all the parties.
Thomas Steph. Summer
MDE lawyer
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