The Magistrate's Court of Drama with the no. 107/2022 Decision of, on a case successfully handled by our office, canceled a Payment Order issued against a borrower.
In particular, the foreign fund's claims management company (as a successor banking institution) hastened enforcement against the borrower by ordering the payment of the amount of 21,034.07 euros. The Magistrate's Court of Drama, after a timely and legal objection by the debtor, canceled both the Payment Order No. 9/2021 of Mrs. Irinodiki Drama, as well as the drawn up check to be executed, condemning the banking institution to pay the court costs of the objector.
Next is her body no. 107/2022 of the Decision of the Magistrate's Court of Drama.
Decision Number 107/2022
THE JUSTICE OF THE PEACE OF DRAMA
(Special procedure for property disputes)
COMPILED by Justice of the Peace Savvas Skamagis.
MEETED publicly in his audience on October 15, 2021, with the cooperation of Secretary Loukia Kaouris, to try the case between:
OF THE APPELLANT – AS THE ADDITIONAL INTERVENTION: ………, who appeared through his attorney Thomas Kalokiris (D.S. Thessaloniki, A.M.11982).
THE REVIEW OF EACH - THE ADDITIONAL INTERVENTION IN FAVOR: Claims management company according to Law 4354/2015, with the name "...."
OF THE ADDITIONAL INTERVENTOR: Anonymous company with the name “….”
The objector requests that his objection from 9-6-2021, filed in this Court with no. cat. 177/9-6-2021 and the discussion on the trial of 3 was determinedher-9-2021, when it was postponed for the hearing mentioned at the beginning of this. The additional intervener with the additional intervention from 26.8.2021 (exhibition no. 195/26-8-2021) requested what is mentioned in it. The discussion took place as stated in the Minutes of the Public Meeting.
AFTER STUDYING THE LITIGATION
CONSIDERED ACCORDING TO THE LAW
According to article 630A of the Civil Code, the payment order is served on the person against whom it is addressed within a period of two months from its issuance. If delivery is not made within the two-month period, the payment order ceases to be valid. This provision makes it mandatory to serve the payment order on the defendant and establishes a maximum time limit for its execution. The deadline is two months from the date of issuance of the order. If the order is not (validly) served on the defendant within the two-month period, it automatically cancels its validity. Thus, the order no longer produces any legal action, and the results that may have occurred are retroactively overturned (AP 948/2007 Law, EfAig 97/2021 Law, Keramea-Kondyli-Nika/Podimata, ErmKPolD, art. 631, no. 2 and 3, Arvanitaki, The Payment Order under the Civil Code chapter IX). In view of this regulation of article 630A of the Civil Code, the exercise of the objection under article 632 of the Civil Code on the grounds of non-service of the order within two months, should not be excluded, especially in cases of disputes regarding the automatic termination of its validity. The enactment of this provision, based on which the according to articles 631 and 904 par. 2 item. e' of the Civil Code enforceability of the payment order is lifted in the case of non-delivery to the debtor within two months of its issuance, the payment order only concerns the interest of the defendant and is due to the care that he receives timely knowledge of the order and thus has the possibility of defending against it, so that the payment order does not remain unpaid for an indefinite period of time in the hands of the creditor and hence the relevant claim of the creditor against the debtor is pending indefinitely, with the risk that the creditor may one day make use of it unfairly to the detriment of the credibility and solvency of the defendant in the transactions.
Finally, on an objection against a payment order, the court must rule on all the reasons for the objection, when it is going to reject it, otherwise it is guilty of the misdemeanor of leaving a request unjustified. However, when it finds that one of the cited reasons for objection is legally and substantively valid and leads to the cancellation of the payment order, the court is not bound to follow the order set out in the petition, in application of the principle of disposal (Article 106 of the Civil Code), and is not obliged to rule on the other grounds of opposition. This follows from the principle of the economy of judicial action and from the fact that the legal interest of the objector is fully satisfied (EfThes 2292/2006 CHR 2007.156, EfPir 526/2003 Law, EfATH 5824/2001 ElDni 2002.189, Πρτρικ 38/2017 Law, BrCav 10/2017 Law).
The objector with the considered opposition requests, a) the annulment of the Payment Order No. 9/2021 of the Drama Magistrate, by which he was obliged to pay the objector the sum of 19,975.85 euros, plus interest and court costs, b) the cancellation of the 11-5-2021 check for payment drawn up under the copy of the first inventory of the executor of the above Payment Order, in the total amount of 21,034.07 euros, on the basis of which forced execution is expedited against him and c ) the defendant's conviction and the opposition to his court costs. This is permissible according to art. 218 par. 1, 591 Civil Code accumulation in the same document, objection against the payment order (article 632 Civil Code) and opposition against the check to be executed (article 933 Civil Code), in accordance with the provisions of article 632 par. 6 Civil Code, since both objections fall under the jurisdiction of this court (since according to article 933 par.1 of the Civil Code, the objection is brought to the Magistrate's Court if the enforceable title has been issued by this court as in this case, rejecting the contrary claims of the defendant) are tried on same procedure (see articles 632 par. 2 and 937 par. 3 of the Civil Code), while their contemporary adjudication does not cause confusion. The objection was made admissibly [see the written information from 8-6-2021 on behalf of the objector, on the possibility of resolving the present dispute through mediation, in accordance with article 3 par.2 of Law 4640/2019 Official Gazette A' 190/30-11-2019 which was submitted by ' article 227 of the Civil Code (see Yiannopoulos, Mediation and Civil Litigation, p.208), following a telephone call from the secretary of the court] legally and on time, since the petition was filed on 6-9-2020 and the opposition was served on the defendant on 10-6-2020 (see no. 11703D'/10-6-2020 service report of the bailiff of the Court of First Instance of Athens Giannoulas Vienna up to the 20-5-2021 notation on the copy of the Payment Order of the bailiff of the Court of First Instance of Kavala Konstantinou Ganitis. Furthermore, it follows from the above that within the deadline according to art. 934 par. 1 of the Civil Code, an objection was filed against the execution by which the check for payment is challenged. It must therefore be investigated further. Also, the anonymous company for the provision of Claims Management Services under the name "……." with the no. 195/26-8-21 document that he filed with the Registry of the Court exercised independent additional intervention in the trial as a non-entitled party according to article 2 par. 4 of Law 4354/2015 in favor of the defendant the opposition, as it has been assigned to her , the management of receivables from non-performing loans, of the foreign company with the name "…….", which became the special successor of the anonymous banking company with the name "……." following transfer to it by the latter pursuant to the 16.3.2021 sale and transfer contract of claims, including the disputed one, in accordance with the provisions of Article 10 of Law 3156/2003, Articles 455 et seq. of the Civil Code, legally published in a summary with number 52,62/17.3.2021 in volume 12 and no. 52 in the books of law 2844/2000 kept at the Athens Preservation Office, which had become the special successor of the foreign company with the name " ……", following reassignment to it by the latter pursuant to the 10.3.2021 contract for the re-transfer of claims, including the disputed one, legally published in a summary with first number 54/10.3.2021 in volume 12 and n/a 44 in the books of Law 2844/2000 kept at the Athens Preservation Office. Based on the above, he requested that the considered objection be rejected. In this case, the aforementioned independent additional intervention which was admissibly exercised pursuant to article 2 par. 4 of Law 4354/2015, must be litigated together with the present application, because they fall under the same procedure and facilitate the conduct of the trial pursuant to article 246 of the Civil Code by the present competent Court in terms of substance and place, due to the fact that it is relevant to the considered application (article 31 par. 1 of the Civil Code). It is certain and legal, based on the provisions of articles 80, 83 of the Civil Code, which is why it will also be examined in terms of its substantial validity.
With the seventh ground of his objection, the objector requests that the challenged payment order and the 11-5-2021 check for payment be annulled, claiming that the disputed payment order has ceased to be valid, since, although it was issued on 5-3-2021, an exact copy from the first enforceable copy of the above payment order, the first one was delivered to the objector on 26-5-2021, i.e. after the deadline of two months from its issuance as defined in article 630A of the Civil Code. The above reason is certain and legal and will be examined in terms of its substantial validity. From all the documents that the parties present, some of which are listed below, without however receiving any for the substantive assessment of the dispute, the following was proven: Following the defendant's application dated 2-26-2021, it was issued, on 5 -3-2021, against the objector the payment order numbered 9/2021 of the Justice of the Peace of this Court, by virtue of which the objector was obliged to pay the defendant the amount of 19,975.85 euros, with the legal interest from 22- 1-2020, plus an amount of 660 euros for the awarded court costs. It was further proven that the defendant delivered the first to the objector an exact copy of the first enforceable copy of the above payment order, with the following check dated 11-5-2021, on 26-5-2021 (see no. 4156C/26-5-2021 performance report of the bailiff of the Court of First Instance of Kavala Gaki Konstantinou). The above-mentioned service, however, is, according to the previous legal considerations, out of time, because it took place after the two-month period from the issuance of the payment order, and due to its late service, the payment order was suspended, according to what are exposed to the main consideration, automatically its validity as expressly defined in the same article 630A of the Civil Code and is now considered non-existent, without its subsequent (overdue) performance affecting this consequence. The defendant admits that she did not submit the payment order in question within the deadline of two months from its issuance, but maintains that the procedural deadline in question was suspended pursuant to Article 25 of Law 4792/2021 and Article 83 of Law 4790 /2021 (Provisions for the reopening of the civil courts and the process of forced execution) where it is specified that: "The period from 7.11.2020 until the date of expiry of the measure of the temporary suspension of the operation of the courts and the prosecutor's offices of country, by virtue of the joint ministerial decision of article 11 of the Legislative Content Act of 11.3.2020 (A' 55), which was sanctioned by article 2 of Law 4682/2020 (A' 76), is not counted in the legal and judicial deadlines for the performance of procedural and extrajudicial actions, as well as other actions before the courts, notaries as auction officers, mortgage registrars, land registry offices and other third parties, as well as the limitation periods for related claims. After the expiration of the time period of the first paragraph, these deadlines run for as long as there is time left to complete the corresponding deadline provided by law. The deadlines suspended according to the previous paragraphs, are not completed, if an additional ten (10) days do not elapse from their intended expiration." With the above provision, only procedural deadlines related to the forced execution of claims were suspended, but the delivery of a payment order without an attached check for payment is not an act of execution (nor is it mandatory by law to communicate the check for payment with the payment order) and therefore, according to article 630A of the Civil Code, it had to be carried out within two months of its issuance, so that the disputed payment order does not cancel its validity. Therefore, the objector complains validly with the seventh reason of his objection, which must be accepted as well-founded and from an essential point of view, independent of the examination of the other reasons. Consequently, the payment order numbered 9/2021 of the Justice of the Peace of Drama must be cancelled, as well as the payment order of 11-5-2021, communicated with the Payment Order, drawn up under the copy of the inventory of the above payment order in the absence of a valid enforceable title. Also, since the objection was accepted as essentially valid, the Additional Intervention must be rejected. Finally, the opposing defendant and the additional intervener must be sentenced in equal parts to pay the court costs of the opposing party, due to their defeat in the present trial (no. 176 of the Civil Code), as specifically defined in the ruling.
FOR THOSE REASONS
DISMISSES the opposition and the additional intervention against the parties.
ACCEPTED the objection.
CANCELS it with no. 9/2019 Payment Order of the Justice of the Peace Drama, as well as the one from 11-5-2021, communicated with the Payment Order, a check for payment, which has been drawn up under the copy of the inventory of the above payment order.
REJECTS Additional Intervention.
IMPOSES against the defendant the opposition and the independent additional intervener, who are liable in equal parts, the court costs of the objector, which he sets at the amount of five hundred (500.00) euros.
Thomas Steph. Summer
MDE lawyer
Min. Doctor of Law, AUTH
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