The Single-member Court of First Instance of Thessaloniki, in a case that our office successfully handled, with the no. 15215/2024 Decision of accepted the Objection of our principal and cancelled a check payable to a foreign fund in the amount of 28,295.43 euros.
In particular, the Court accepted our objection on the statute of limitations on interest which concerned the period from 2.2.2012 to 31.12.2018 and corresponded to the amount of 20,645.74 euros.
Furthermore, it considered the reason for the amount of the 7,649.69 euros, <<for interest on the above amount, as determined after the payments made, calculated at the contractual default interest rate (15.35%) from 2-12-2012 to 9-5-2013...>>, which is contained in the above total amount of interest on the principal that was ordered to be paid and which, has likewise fallen under the statute of limitations.
An excerpt from no. 15215/2024 Decision of the Court of First Instance of Thessaloniki
Decision Number 15215/2024
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
(Special procedure for property disputes)
It was formed by Judge Alexandros Vassilopoulos, President of the Court of First Instance, who was appointed by the President of the Three-Member Board of Directors of the Court of First Instance and by the Secretary…………………..
It sat in public in its audience on October 30, 2024 to hear the opposition with filing number 15667/13323/11.07.2024 between:
The opponent ………., who was represented by her attorney-at-law Thomas Kalokyris, son of Stephen, who submitted proposals.
The defendant's objection: a company with the name <<……………………….>>, based in …………. Attica on …………………………………., with VAT number ………………….., to which the management of the claims of the company with the name <<……………….>>, based in Stockholm, Sweden, has been assigned, as defined in the Management Agreement dated …………. (as it was registered in the public books of the Athens Pawnshop with protocol number ……………./…………..2024 on …. a.a…….) and in accordance with Law 5072/2023, to which the special purpose company based in Ireland with the name <<…….>> has assigned and transferred its overdue claims from loans and credits, by virtue of the agreement dated ………………. contract of sale and assignment of claims, as registered in the public books of the Athens Pawnshop with protocol number ……/……….2024 in the t……… a.a….., which was represented by the attorney-at-law of ,,,,,,,,,,,,,,,,,,,,,,,,,,,,, of ……………, who submitted proposals.
During the discussion of the case, the attorneys for the parties requested that what was stated in the minutes of the public hearing and in their written submissions be admitted.
AFTER STUDYING THE LITIGATION
CONSIDERED ACCORDING TO THE LAW
The objector requests, for the reasons stated therein, the cancellation of the check dated …….. drawn up against a copy of the inventory of the ……….. payment order of the judge of the Single-Member Court of First Instance of Thessaloniki with which the defendant hastened compulsory execution against him. The objection is admissibly filed before this Court, which is competent to hear it (article 933 par. 1 and 3 of the Code of Civil Procedure) in the special procedure for property disputes of articles 614 et seq. of the Code of Civil Procedure (article 937 par. 3 of the Code of Civil Procedure), and was filed in due time, within the time limit provided for by article 934 par. 1 sub-paragraph a of the Code of Civil Procedure, as was not contested by the defendant. It must, therefore, be further investigated as to the admissibility and validity of her arguments.
The objector, with the first ground of opposition, requests the cancellation of the contested check for payment, claiming that the amount ordered to be paid by the defendant in the opposition includes the total amount of 20,645.74 euros, which corresponds to the default interest that has been generated during the period from 2.2.212 to 31.12.2018 and has become statute-barred, indicating in particular the amount of interest generated per year, the time of origin of the respective claim and the time point of commencement of the statute of limitations for each individual benefit. This reason, insofar as it seeks the cancellation of the contested check in its entirety and not only in relation to the claim for the above amount of interest, since it does not affect the validity of the contested check as a whole, but only in relation to the claim for interest, is legally unfounded and for the reason that from the provisions of articles 905, 915, 916, 924 of the Code of Civil Procedure, it is concluded that, if the check was made for an amount greater than that actually owed, invalidity occurs only for the excess amount, while maintaining its consequences for the amount actually owed. The partial cancellation of the check does not entail the cancellation of the subsequent acts of the enforcement procedure, because the partial validity of the check is sufficient to confirm the execution in progress, given that the objector does not invoke a prior appropriate offer on its part of the amount actually owed to it (AP 2089/2013, AP 675/2001, AP 390/2000, AP 391/2000, EfThes 2544/2019, EfATh 105/2019 Law). In the part in which the cancellation of the contested check is requested with respect to the above amount, this reason is definite (see AP 1419/2019, AP 535/2015, AP 761/2014 AP 623/2011, AP 592/2009, AP 1355/1998 Law) and legally valid (articles 250, article 15, 251, 253 of the Civil Code, 924 of the Code of Civil Procedure) and must be accepted as substantially valid.
In particular, with the contested check for payment by …….. written under a copy of the inventory of the ………. payment order and served on the opponent on ……., the latter was ordered to pay to the defendant, among other things, the amount of 29,257.79 euros, with interest at the contractual default interest rate from 2.12.2012 until repayment. The defendant's claims for default interest produced from 2.2.2012 to 31.12.2012 amounting to 3,088.06 euros from 1.1.2013 to 31.12.2013, amounting to 3,195.74, from 1.1.2014 to 31.12.2014 amounting to 2,953.53 euros, from 1.1.2014 to 31.12.2015 amounting to 2/865.82 euros from 1.1.2016 to 31.12.2016 amounting to 2,850.21 euros from 1.1.2017 to 31.12.2017 amounting to 2. 846.19 euros and from 1.1.2018 to 31.12.2018 amounting to 2,846.19 euros, have fallen under the five-year limitation period of article 250 of the Civil Code, which began, pursuant to article 253 of the Civil Code, on 1.1.2013, 1.1.2014, 1.1.2015, 1.1.2016, 1.1.2017 and 1.1.2018 respectively and was completed on 31.12.2017, 31.12.2018, 31.12.2019, 31.12.2020, 31.12.2021, 31.12.2022 and 31.12.2023 respectively, as five years have passed since the commencement of the limitation period of each individual periodic benefit for default interest. The total amount of this interest amounts to 20,645.74 euros. Therefore, the third ground of opposition must be accepted in part as substantially well-founded and the contested check for payment must be annulled in respect of the interest amount, which the opponent is ordered to pay (with item a in the check), in the above amount of 20,645.74 euros. It is also worth noting that the defendant did not raise any claim regarding the interruption and suspension of the limitation period for the above interest, nor were the above amounts specifically disputed by the opponent.
With the second ground of objection, as assessed by the Court, the opponent requests the annulment of the contested check, the content of which is stated in the application, claiming that it is indefinite, because the amount due for capital, interest and costs, the final amount of interest payable, the amount of the contractual default interest rate on the basis of which they were calculated are not precisely specified, as well as that it orders her to pay twice the amount of 7,649.69 euros, which corresponds to interest for the period from 2.12.2012 to 9.5.2013 << as they have been formed after the payments made >> which are not specified, which has become time-barred, according to what she stated in the first ground of objection. This reason, in the part referring to the indefiniteness of the cancelled check, is legally unfounded and must be rejected since the lack of specification of the amount of default interest in the text of the check to be paid does not make it indefinite, as their calculation is possible by performing a mathematical calculation based on the principal, the agreed interest rate and the interest period, the starting point of which is indicated (see EfAθ 13/2024, EfPeir 627/2023, EfPatr 490/2021, EfAθ 5669/2022 Law), especially in view of the fact that the interest could not be calculated in advance since it is not known when it will be paid (EfPatr 490/2021 Law). Moreover, the contested check, as its content is set out in the opposition petition, is complete, as it contains a clear reference to the amount due and a breakdown of the debt by capital, interest and expenses (EfLam 32/2022, EfAθ 3773/2021, EfAθ 3499/2021, EfPatr 21/2021, EfAθ 123/2020 Law), while the type of interest is also mentioned (EfAθ 3041/2022 Law). Insofar as the amount of 7,649.69 euros is contested, this reason is legitimate, based on the provisions of articles 924 of the Code of Civil Procedure, 250 art. 15, 251, 253 of the Civil Code, except for the part based on the failure to list the payments made, which is legally valid as the payments of each debtor do not constitute an element of the content of the check, necessary for its validity, but rather the basis of the debtor's objection (AP 194/1995 ΕΕΝ 1996.182). It must also be accepted as substantially valid, because the documents presented and invoked by the parties prove that with the contested check the objector was ordered to pay, among other things, the amount of 39,257.79 euros, with interest at the contractual default interest rate from 2.2.2012 until repayment, as well as the amount of. 7,649.69 euros <<for interest on the above amount, as determined after the payments made, calculated at the contractual default interest rate (15.35%) from 2-12-2012 to 9-5-2013...>>, which is included in the above total amount of interest on the principal that was ordered to be paid and which, according to what was accepted regarding the first ground of opposition, has become statute-barred, as the five-year statute of limitations of the relevant claim expired on 31.12.2018. Consequently, the contested check must also be annulled in respect of the amount of 7,649.69 euros (with item b' of the check), given that, as stated in the first ground of objection, any invalidity of part of the check does not constitute a reason for the invalidity of the remaining claims. [….]
Following this, since there are no other grounds for objection to be investigated, the objection must be partially accepted and the contested check must be annulled with regard to the above interest amounts. Finally, the defendant must be ordered to pay part of the legal costs of the opponent, due to the partial victory and defeat of the parties and depending on the extent thereof (articles 178 par. 1, 191 par. 2 of the Code of Civil Procedure, 63 par. 1, 64 par. 1, 65, 66, 68 par. 1 and 84 par. 1 of the Code of Lawyers), in accordance with the specific provisions of the operative part.
FOR THOSE REASONS
Judges opposition of the parties.
Accepts partly the opposition.
Cancels the ……. check for payment placed under a copy of the inventory of the …………………. payment order of the judge of the Single-Member Court of First Instance of Thessaloniki in the amount of 20,645.74 euros, which corresponds to the amount of interest charged therewith for the period from 2.12.2012 to 31.12.2018, andand regarding the amount of 7,649.69 euros.
It orders the defendant to pay part of the opponent's legal costs, which it sets at the amount of five hundred and thirty (530) euros.
Judged, decided on November 20, 2024.
THE JUDGE THE SECRETARY
Thomas Kalokiris
Supreme Court Lawyer
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