The Monomeles Court of First Instance of Thessaloniki with the no. 8283/2022 Decision of on a case handled by our office, canceled the Payment Order and Check payable by which the objectors were ordered to pay the amount of 161,138.53 euros plus interest and costs for a claim arising from a mortgage contract thus stopping the foreclosure process.
The objectors presented, among other things, vthe lack of active legalization on the part of each objection management company from loans and credits for the issuance of a Payment Order and acceleration of enforcement.
The Court, based on the submitted documents and what the attorneys suggested, decided that the claims management company does not has eexcept for the legalization of a non-beneficiary party and not is legalized to perform procedural acts on behalf of the principal of the company, nor can the contract between them and the granting of a power of attorney establish exceptional legalization. As a consequence of this, it was not actively legalized in the issuing of the challenged payment order and in virtue of it the acceleration - based on the challenged check to be executed - of forced execution, which as a procedural act is invalid.
It therefore ruled that the contested acts should be annulled and sentenced the defendant to pay the court costs of the appellants, which he set at the amount of 3,000 euros.
Next is the body of no. 8283/2022 of the final Decision of the Single Member Court of First Instance of Thessaloniki
DECISION 8283/2022
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
SPECIAL PROCEDURE FOR PROPERTY DISPUTES
COMPILED by Judge Smaroula Hatziathanasiou, Court of First Instance, appointed by the President of the Three-Member Board of Directors of the Court of First Instance, and by the Secretary, Eleftheria Kiskira.
MEETED publicly in his audience in Thessaloniki, on the 7ththe February 2022, to try the case between:
OF THE APPLICANTS: 1) ………………, and 2) ……………………………, the genus ………………………………., both residents of Kalamaria, Thessaloniki, on street ……………………., number……, who appeared in Court through the lawyer’s proxy, Thomas Kalokiri (D.S. Thessaloniki A.M. 11982), who submitted proposals and advanced the contributions provided for by the provision of article 61 par. 1 and 2 of Law 4194/2013.
OF KATH'IS THE ANAKOPI: of the anonymous company with the name “…………………………………………………….» after the modification of the name of the joint-stock company with the brand name "…………………………………………..", according to the announcement with protocol number …………………….. in the G.E.MH. on the registration and publication of the relevant deed, based at ………………………, on the street ………………………. & ……………………., with G.E.MH number ………………….., VAT number ………………………….., legally licensed by the Bank of Greece as a Loan and Credit Receivables Management company in accordance with the provisions of Law 4354/2015, as applicable, and No. ………………. decision of the Credit and Insurance Committee of the Bank of Greece (Government Gazette), as legally represented, in its capacity as a non-beneficiary party and as administrator of the claims of the foreign company under the name "……………………………..)" (hereinafter as "………………………………..") based in Dublin, Ireland (address: ……………………., No. ….., …………………….., …………………), with Registration Number: ………………………, as legally represented, according to the Management Agreement dated 18/06/2019, which claims were transferred to it by the anonymous banking company under the name <<…… ………………………..>> (after changing its name from <<…………………………>> and G.E.MI …………………), which is based in Athens (street ……………….. no. ………..), with no CHARGE: ………………………………. and VAT number ………………….., D.O.Y.: F.A.E. of Athens, as legally represented, by virtue of the Sale and Transfer of Receivables Agreement from June 18, 2019, as it was legally registered in the public books of the Athens Preservation Office under no. of protocol 146/18.06.2019 (vols: 10, number: 180), in accordance with the provisions of Law 4354/2015 (article 3 par. 3 in conjunction with article 3 of Law 2844/2000), which was presented to the Court through the Attorney's attorney , …………………………………………., who submitted proposals and advanced the contributions provided for by the provision of article 61 par. 1 and 2 of Law 4194/2013.
DURING THE DISCUSSION of the case, the attorneys for the parties requested that what is mentioned in the minutes of the public meeting and their proposals be accepted.
AFTER STUDYING THE LITIGATION
THOUGHT ACCORDING TO THE LAW
The objectors with the present objection state that following the application of the respective company, the Payment Order No. 11090/2020 was issued by the Judge of the Single-Member Court of First Instance of Thessaloniki, by virtue of which the objectors were obliged to pay it the amount of 161,138.53 euros plus interest and expenses, for her claim arising from the housing loan agreement numbered 650000525930/12-10-2005, concluded between them as creditors and the company with the name "……………………………… …………” as a creditor. That on 04-22-2021 the objection was served to them by the defendant, in the capacity of the administrator of the company's claims of the foreign special purpose company with the name <<……………………..>>, which became the special successor of the anonymous banking company with the name “………………………………...” (after its name was changed from <<……………………. >> and G.E.MI ………………………..), following transfer in the context of the securitization of claims from loans and credits of the above anonymous banking company, including the legal claim, in accordance with the provisions of N 3156/2003, the aforementioned Payment Order with the check dated 06-04-2021 to be executed as detailed in the opposition document. Based on the above content, the objectors request for the reasons, which in particular they set out in the opposition document, the annulment of a) the payment order numbered 11090/2020 of the Judge of the Single-Member Court of First Instance of Thessaloniki, and b) of the 06- 04-2021 of a check for payment under the copy numbered 179/2021 of the first enforceable inventory numbered 11090/2020 payment order of the Judge of the Single Member Court of First Instance of Thessaloniki.
With the above content, the objection against the payment order (article 632. 633 of the Civil Code) and the objections against the enforcement procedure (article 933 of the Civil Code) are admissible in this petition and are duly brought for adjudication before this Court (articles 632 par.1 para.a', 933 par.1 para.a' of the Civil Code, as they apply after their replacement by article 1, article nine and by article 1, article eight, paragraph 2 of Law 4335/2015, respectively, in cond. with article 1 article nine par. 2 and 4 of the same law, and article 14 pNo. 2, as applicable after its replacement by article 6 par. 1 of Law 4055/2012 and 207 par. 2 of Law 4512/2018), to be tried in the present proceedings of the property disputes of articles 614 et seq. of the Civil Code (articles 632 par. 2 ed. final., 937 par. 3 of the Civil Code), and their joint litigation will save time and money (article 218 of the Civil Code). In addition, the objection both by the party opposing the payment order and by the party opposing the check for payment was brought within the time limit (articles 632 par.I0' KPolD and 934 par. Ia' ed. a'), since a certified copy from the first executor of the interrupted payment order was served to the objectors for the first time on 04-22-2021 (ref. submitted by the defendant no. 5810 and 5839/Δ722-04-2021 service reports of the Judicial Commissioner of the District of the Court of Appeal of Thessaloniki based at the Court of First Instance of Thessaloniki, …………………………..), and the opposition was served on the defendant on 11-05-2021 (or. No. Γ'9346711-05-2021 service report of the Judicial Commissioner of the District of the Court of Appeal of Thessaloniki based at the Court of First Instance of Thessaloniki, ………………………………..), therefore within the legal deadline of fifteen (15) working days of article 632 par. 2 of the Civil Code and within the deadline of article 934 par. Ia sec. a'KpolD, i.e. the deadline of 45 days, since it does not appear that after the delivery of the challenged check another act of enforcement followed. The cumulative objections must therefore be accepted in their formal part and further investigated in the legal and substantiveor validity of their reasons. […]
[….] With the sixth ground of their contested objection, the objectors request the annulment a') of no. 11090/2020 payment order of the Judge of the Single-Member Court of First Instance of Thessaloniki, and b) of the 06-04-2021 check for payment below the copy of the copy numbered 179/2021 of the first executorunder number 11090/2020 payment order of the Judge of the Single-Member Court of First Instance of Thessaloniki, due to the lack of active legalization of the objection to issue the first and to speed up enforcement under it. The above ground of opposition is legally valid, based on the legal provisions listed in the immediately preceding main opinion, as well as the provisions of articles 904, 919 and 925 of the Civil Code. and must therefore be examined as to its substantive validity.
From all the documents that the parties legally produce upon subpoena and which are taken into account, even if they do not meet the conditions of the law (Article 270 par. 2 of the Civil Code), either as independent means of evidence, or to serve as judicial documents, some of which are specifically mentioned below, but without omitting any for the essential diagnosis of the dispute, it is proved that: at the request of each company with the name with the name "……………………….» Payment Order No. 11090/2020 was issued for Judge of the Single-Member Court of First Instance of Thessaloniki, by virtue of opias the interrupters were obliged to pay her the amount of 161,138.53 euros plus interest and expenses, for her claim arising from the housing loan agreement numbered …………………….., concluded between them as creditors and thechurch with the name "…………………………………» as a creditor. That on 04-22-2021 delivered from each objection, in the capacity of administrator of the company's claims of the foreign special purpose company with then brand <<…………………………….>>, which became a special successor of the anonymous banking company with the name "………………………………» (after changing its name from <<…………………………………………>> and G.E.MI ………………………………..), after transfer to the frames securitization receivables from loans and credits of the above anonymous banking company, including the legal claim, in accordance with the provisions of Law 3156/2003, the aforementioned Payment Order with the check dated 06-04-2021 for execution, by virtue of which they were ordered to pay the following amounts: 1. For an adjudicated claim, the amount of hundred sixty onethousands hundred thirty-eight euros and fifty-three cents (€161,138.53), interest at the contractual default rate of 4.62 from 12-20-2019, the day after notification of the out-of-court termination of the loan agreement and until full payment of the interest capitalized and compound interest, as defined by the no. 11090/2020 Payment Order of the SINGLE-MEMBER COURT OF FIRST INSTANCE THETHESSALONIKI, impaired with regard to the payments made in the meantime: a) fifty (50.00€) euros from 09-11-2020, b) fifty (50.00€) euros from 30-11-2020, c) fifty ( €50.00) euros from 12-24-2020, d) fifty (€50.00) euros from 01-29-20201 and e) fifty (€50.00) euros from 02/25/2021. 2. The sum of three thousand two hundred and sixty-five euros and thirty-seven cents (€3,265.37), which is expenses borne by the debtor, with interest at the legal default rate from the followingof the day of payment, i.e. from 11/02/2020 and until full payment, as stipulated by the no. 11090/2020 Payment Order, 3. a) Fora awarded court costs, the amount of three thousand three hundred and eighty six euros (€3,386.00). b) For a copy and copying rights, the amount of four euros (€4.00), c) For its service, the amount of fifty euros (€50.00), i.e. in total, the amount of three thousand four hundred and forty (3,440.00 €), interest at the legal default rate from the day after the delivery of the present, until they are paid in full. Furthermore, the defendant with the above check for payment communicated to the objectors, according to article 925 of the Civil Code, the following legalizing documents: a') the protocol number 146/18.06.2019 summary of the contract from 18.06.2019 of sale and transfer of business receivables of article 10 par. 8 of Law 3156/2003 which proves the sale and transfer of business receivables by the anonymous banking company with the name "………………………………………… ……..» to the foreign company with the brand name "……………………………….", based in Dublin, Ireland (street ………………………. No. ………….., ………..,………) with registration number in the register of companies …………….., which is legally represented, registered on 6-18-2019 in the Books of art. 3 of Law 2844/2000 of the Preservation Office of Athens in volume 10 with number 180 (Article 10 paragraph 8 of Law 3156/2003) as well as the exact excerpt from the appendix attached to the above summary of the contract of sale and transfer of business receivables and has been extracted from the public books of the Athens Bailiff (law. 2844/2000), specifically page 350 of 1255, and from which it is proven that the assigned claims also include the claims for which the no. 11090/ 2020 Payment Order of the SINGLE MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI (Vol. 10 and no. 180), b') with protocol number 147/18.06.2019 summary of the business receivables management contract from 18.06.2019 of article 10 par. 14 and 16 of law 3156/03 which was registered on 18.06.2019 in the book of article 3 of law 2844/2000 of the Athens Preservation Office in volume 10 with number 181 (article 10 paragraph 16 of Law 3156/2003), from which it follows that the management of the transferred claims, including the claim, was assigned on 18.06.2019 by the foreign special purpose company under the name "……………………………………………" in our company under the brand name "………………………………………….." with distinctive title "…………………….", and c') The letter number ………………………………. Announcement of the Head of the Division GEMI, SA, EPE & Y.M.S., DEPARTMENT B' regarding the registration with number …………… of the decision with number ………………….. of the GEMI Service (6PSYG469HETH-Λ3S) regarding the amendment of articles 1, 9 and 12 of the articles of association of the company with the name "………………………." (including modification of this brand name). From the above it is proven that the disputed loan was granted to the interrupters from the anonymous company with the name “…………………………..", while on the 2nd-08-2012 was registered in the G.E.MH. with registration code number …………….. or with number …………………….. its decision Dnsis S.A. and Pistuntil her G. Gr. of Commerce, by virtue of which the “…………………………..» was renamed to “………………………." (F.E.K. ………………………. Issue S.A. – E.P.E. – G.E.MI). Then the "……………………….», as legally represented, e.gresulted in the transfer of its claims from mortgages and other loans to the company "……………………………..» (hereinafter as "…………………………….") by virtue of 18 June 2019 Contract of Sale and Transfer of Business Claims, in context securitization claims in accordance with the provisions of Law 3156/2003, as it was legally registered in the public books of Bailiff's office Athens with No. of protocol 146/18-06-2019 (volume 10, number 180). From page 350 of the passage it follows that on assigned claims including the disputed one. Pursuant to Article 10 of Law 3156/2003, the aforementioned transfer has the effect of an assignment in accordance with Articles 39 and 44 of n.d 17.7- 13.8/1923. And Msregistration of the summary of the contract in the public book has the effect of announcing the assignment to the borrower. According to article 455 ep. AK, with the assignment, the collateral securing the above claim was also transferred. It then turns out that the acquiring foreign special purpose company with the name "…………………………….", as legally represented, delegated the management of the above securitized receivables from mortgage contracts and other loans to the company under the name "…………………", pursuant to the Business Receivables Management Agreement from June 18, 2019 (Article 10 § 14 and 16 of Law 3156/2003), as it was legally registered in the public books and Bailiff's office Athens with No. of protocol 147/18-06- 2019 (Volume 10, Number 181). Next, the anonymous company with the name "…………………………..» according to the announcement with protocol number ………………………….. in the G.E.MH. on registration and publication of the relevant deed with number G.E.MH. ………………………..renamed to “……………………………….». However, from the management contract presented above, it follows that the transfer of the management of litigants claims took place within the framework of Law 3156/2003 article 10 par. 14 and 16, and these provisions, and exclusively, are invoked in the preamble of the contract, while no mention or invocation is made of the provisions of Law 4354/2015 . According to the above, the respective company is, according to article 10 paragraphs 14, 15 of Law 3156/2003, the administrator of the claims of the foreign special purpose company with the name "………………….", based in Dublin, Ireland. It should be noted that no reference is made to the provisions of Law 4354/2015 nor even regarding the operation of the anonymous company for the management of receivables from loans and credits under the name "………………………", which and occurred in the management contract and before renaming it to "……………………………………………». It clearly follows from the above extract of the management contract that the management of securitized claims to the defendant took place in accordance with Law 3156/2003 and not in accordance with the provisions of Law 4354/2015. Consequently, and in accordance with the above mentioned in quoted above important consideration, power by exception to legalize a non-beneficiary party is not granted to the claims management companies that were transferred under the terms of Law 3156/2003, while the regulation of article 2§4 of Law 4354/2015 does not apply to them. The defendant, in which the foreign special purpose company (acquisition by securitization of receivables) of article 10 of Law 3156/2003, entrusted with a mandate contract the management of the acquired receivables, has not been defined by law as a non-beneficiary, by exception legalized, a party and therefore is not legalized to act procedural acts on behalf of the principal of the company, nor the contract between them and the provision of power of attorney can exceptionally establish legalization. Consequently, the defendant was not actively legitimized in the issuance of the challenged payment order and in virtue of it the acceleration - based on the challenged check to be executed - of forced execution, which as a procedural act is invalid. Therefore, the first ground of the objection in question must be accepted and the contested acts annulled, excluding the examination of the other grounds of objection, since with the success of the first ground in the objection, the legal interest of the objector is fully satisfied.
Finally, each opposition must be sentenced, due to its defeat, to pay the court costs of the objectors (articles 176 of the Civil Code in conjunction with the provisions of articles 63 par. I para. a', 66 and 68 of Law 4194/2013), as specifically defined in the ordinance.
FOR THOSE REASONS
JOINTLY LITIGATES the objections of the parties accumulated in the filing report number G.A.K./E.A.K./ETOS/6880/5611/10-05-2021 objections according to article 632 of the Civil Code and 933 of the Civil Code.
ACCEPTED formally and in substance the cumulative objection according to article 632 of the Civil Code.
CANCELLED the number 11090/2020 payment order of the Judge of the Single Member Court of First Instance of Thessaloniki.
ACCEPTED formally and in substance the cumulative opposition under article 933 of the Civil Code.
CANCELLED the check for payment dated 06-04-2021 under the copy numbered 179/2021 of the first enforceable inventory numbered 11090/2020 payment order of the Judge of the Single-Member Court of First Instance of Thessaloniki.
CONDEMNING for each objection to the court costs of the objectors, which he sets at the amount of three thousand (3,000.00) euros.
DECIDED and decided in Thessaloniki, on June 2022.
THE JUDGE THE SECRETARY
PUBLISHED at an extraordinary public meeting in his audience, in Thessaloniki, on June 1, 2022.
Thomas Steph. Summer
MDE lawyer
Min. Ph.D. AUTH
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