With the no. 187/2024 Decision, in a case that our office successfully handled, the Single-Member Court of First Instance of Ioannina accepted the Objection under article 933 of the Code of Civil Procedure, by which the objector requested the cancellation of the auction to the detriment of her primary residence.
The Court declared the law absolute invalidity of the seizure report, canceled the accelerated auction and awarded the Court fees in favor of the objector.
The following is the number. 187/2024 Decision of the Court of First Instance of Ioannina
DECISION NUMBER 187/2024
SINGLE-MEMBER COURT OF FIRST INSTANCE OF IOANNINA
ASSEMBLED by Judge Sofia Fragkioudaki, First Instance Court, appointed by the
Head of the Court of First Instance, President of the Court of First Instance of Ioannina and by the Secretary……………
MEETING publicly in its hearing, on May 15, 2024, to try the objection under Article 933 of the Code of Civil Procedure between:
OF THE ANAKOPOTOUSA: …… which was represented by the attorney-at-law of Thessaloniki Thomas Kalokiris (AM 11982), who submitted written proposals.
THE END OF THE DAY: a public limited company with the name <<…………. …………..>>, which was represented by the power of attorney of a lawyer from Ioannina,……………, ………….., who submitted written proposals.
The opponent requests that her opposition, dated 02.04.2024 and with filing number …./2024, be accepted, which was filed with the registry of this Court, registered in the register with number 92 and determined for the hearing, referred to at the beginning of this. During the public discussion of the case, the attorneys-at-law of the parties requested that their claims and what they stated in their proposals be accepted.
AFTER STUDYING THE LITIGATION
CONSIDERED ACCORDING TO THE LAW
With her present objection, the objector requests that for the reasons stated therein a) the check dated 16.10.2023, drawn up under the copy of the first enforceable inventory of the payment order numbered …./2023 of the Judge of the Single-Member Court of First Instance of Florina and b) the report numbered ……/2024 of the forced seizure of real estate, of the bailiff of the Court of Appeal of Ioannina, based at the Court of First Instance of Ioannina, …………….., be annulled, as well as that the defendant in the objection be ordered to pay her legal costs. With this content and requests, the present objection is duly submitted for discussion before this Court, which is competent in terms of substance and place, in accordance with article 933 par. 1 subs. a' and par. 3 of the Code of Civil Procedure (as amended by article 57 of Law 4842/2021), given that the enforceable title was not issued by the Court of the Peace and it is the Court of the district of the place of execution, in the appropriate special procedure for property disputes under article 937 par. 3, as amended by article 59 of Law 4842/2021, in conjunction with articles 614 et seq. of the Code of Civil Procedure. Furthermore, the objection was filed admissibly and in due time, within the legal deadline of 45 days from the day of seizure, provided for by the provision of article 934 par. 1 cf. a' of the Code of Civil Procedure, given that a copy of the judicial seizure report was served on the opponent on 22.02.2024, as follows from the service report numbered ………/2024 of the bailiff of the Court of Appeal of Ioannina, based at the Court of First Instance of Ioannina, …………… ……………… It must, therefore, be further investigated as to the admissibility and the legal and substantive validity of her grounds.
According to article 955 par. 1 and 2 of the Code of Civil Procedure, a copy of the seizure report is served upon the termination of the seizure to the defendant against whom the execution is being carried out, if he was present, and if he refuses to receive the document served on him, the bailiff draws up a report on his refusal. If he is absent or it is not possible to draw up the copy immediately, the service is made no later than the day after the seizure took place, provided that the person against whom the execution is being carried out has his residence in the district of the municipality where the seizure took place, otherwise within eight (8) days from the seizure. The omission of these formalities results in invalidity. It is assumed, of course, that the defendant is present at the location of the property when the seizure report is drawn up. However, if the defendant to whom the execution is due is absent, the service must be made no later than the day following the signing of the seizure report, provided that the defendant to whom the execution is due has his residence in the district of the Municipality where the seizure took place (S. Pantazopoulos, The performance of the seizure report, in Forced Execution, 2nd edition 2022, p. 462 no. 463). It follows from these provisions that the service of the seizure report must be made to the defendant to whom the seizure is due and not to relatives, or cohabitants, or to officials who are able to receive notified documents. The presence of the latter persons does not mean the presence of the defendant to whom the execution is due, who is considered present only when he is present in person, (MPI 525/2023, published in TNP LAW). The imposition of seizure entails significant consequences, which affect not only the financial and legal situation of the defendant against whom the seizure is being carried out, but also of third parties who deal with him. It is therefore necessary to immediately inform the defendant and to provide third parties with the opportunity to be informed of the imposition of seizure (N. Nikas, Law of Forced Execution, II, special part, 2nd edition, Sakkoulas publications Athens - Thessaloniki 2018, p. 208, no. 58). The deadlines of article 995 par. 1 and 2 of the Code of Civil Procedure begin on the day following the expiry of the above seizure report (P. Yesiou – Faltsi, Law of Compulsory Execution, II/a, special part, 3rd edition, 2018, p. 304, footnote 148) and consequently, if the defendant is absent during the seizure, service must be made, as stipulated in par. I in conjunction with articles 144 par. 1 and 145 of the Code of Civil Procedure, according to which the deadlines that begin with the service of a document also run against the person by whose order the service was made, and Saturday is considered an exceptional and non-working day for the purposes of this Code. These formalities are imposed under penalty of invalidity of the seizure pronounced after an objection, regardless of the invocation and proof of procedural damage (I. Brinias, Compulsory Execution, volume two, second edition, reprint, articles 941 – 981 of the Code of Civil Procedure, p. 765, no. 286 and Kerameas -Kondylis- Nikas, Interpretation of the Code of Civil Procedure, volume II, articles 591 – 1054, Sakkoulas publications, Athens – Thessaloniki, p. 1844, no. 1).
With the first ground of her objection under consideration, according to the most correct assessment of its content, the opponent claims that the service of the report of compulsory seizure is invalid, as it took place in violation of the formalities of article 995, paragraph 1 of the Code of Civil Procedure. With this content, the above ground of objection is definite and lawful, based on the provisions of article 995 of the Code of Civil Procedure and must be further investigated as to its substantive validity.
From all documents, without exception, legally presented and invoked by the parties, which are taken into account either for direct proof or for the inference of judicial presumptions (articles 336 par. 3, 339, 395 of the Code of Civil Procedure), some of which are explicitly mentioned below, without however omitting any of them for the substantive diagnosis of the dispute, the following facts are proven: By virtue of the report numbered ……/2023 of the compulsory seizure of real estate of the bailiff of the Court of Appeal of Ioannina with its seat in the Court of First Instance of Ioannina, ……………., compulsory seizure was imposed against the independent, horizontal properties described in detail in the above report, with a KAEK …………………. and ………………………, property of the objector, for the satisfaction of the claim of the defendant the opposition, for which the payment order numbered 94/2023 of the Judge of the Single-Member Court of First Instance of Florina was issued. An exact copy of the first enforceable inventory numbered ……/2023 of the above payment order, under which the check for execution suspended from 16.10.2023 had been drawn up, was legally and in due time served on the objector, as evidenced by the submitted upon request numbered ……./2023 service report of the bailiff of the Court of Appeal of Western Macedonia, based at the Court of First Instance of Kozani, ……. ……………. Furthermore, from the copy of the suspended seizure report submitted upon request, it is proven that the defendant and already objecting was not present during the seizure, which took place on 19.02.2024. The competent bailiff, since he did not find her, the defendant - debtor, in person, served the suspended seizure report, three days after the seizure was imposed, namely on 22.02.2024, to her common-law son, ……… ……., who signed the relevant report, as evidenced by the report of service of the aforementioned bailiff under number …………/22.02.2024 submitted. However, according to the provisions of article 995 of the Code of Civil Procedure, a copy of the report of compulsory seizure is served after the completion of the seizure to the defendant in execution, provided that he is present. If he is absent, the bailiff carrying out the execution serves the said copy personally to him, at the latest on the following day, provided that the defendant in execution has his residence in the same Municipality where the seizure took place. The provision of article 995, paragraph 1 of the Code of Civil Procedure, which has a similar content to that of article 955, paragraph 1 of the Code of Civil Procedure, which applies to the seizure of movable property, provides for a more specific procedure for the service of the copy of the seizure report, which prevails over the provisions of the general provisions of articles 122 et seq. of the Code of Civil Procedure. In order to ensure that the defendant is informed of the enforcement proceedings initiated against him and the seizure of his real estate, service must be made to him personally and cannot be made to a cohabitant or relative. Therefore, in the present case, given that the defendant, who is already objecting to the enforcement, was absent at the time of the imposition of the compulsory seizure on her real estate and is a resident of a different Municipality than the one where the seized property is located, namely the Municipality of Florina, the bailiff was obliged to serve the copy of the report he prepared regarding the seizure to her personally, within a period of 8 days, from the day following the imposition of the seizure, without service on her cohabitant being sufficient, according to Article 128 of the Code of Civil Procedure.
In consequence of the above, since the lack of the above formalities implies by law the absolute invalidity of the seizure report, in accordance with the express literal interpretation of the disputed provision of article 995 par. 1, subsections a'-c' of the Code of Civil Procedure, it should, if the first of the above-mentioned grounds is successful, be accepted the objection in its entirety, without prejudice to the examination of its other grounds, given that with the success of the above-mentioned reason, the legitimate interest of the objector is fully satisfied (EfAθ 4359/2021, EfAig 125/2019, EfThes 2175/2017, published in TNP LAW), and the contested check for payment and the forced seizure report should be annulled. The legal costs of the opponent must be imposed on the defendant, the opponent, due to her defeat, upon acceptance of her relevant request, in accordance with articles 176, 189 par. 1 and 191 par. 2 of the Code of Civil Procedure, as specifically provided in the operative part of this judgment.
FOR THOSE REASONS
HE JUDGES contradiction of the parties.
ACCEPTED the objection.
CANCELLED the check dated 16.10.2023 for execution of a certified copy from the inventory to the first executor of the payment order numbered …./2023 of the Single-Member Court of First Instance of Florina as well as the report numbered …../2024 of the forced seizure of real estate, of the bailiff of the Court of Appeal of Ioannina, based in the Court of First Instance of Ioannina, ………. …………
CONDEMNING the defendant's objection to the payment of the opponent's legal costs, which it sets at the amount of five hundred euros (€500.00).
JUDGED, was decided and published in Ioannina, in an extraordinary public session in its audience, on July 4, 2024, without the presence of the parties or their attorneys.
Thomas Kalokiris
MDE lawyer
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