The following is the Decision of the Giannitsa Magistrate's Court dated August 24, 2018 and No. 123/2018 (published in the legal information bank NOMOS), which ordered a "haircut" of 100% of debts arising from loans, excluding the borrowers' assets from the sale.
Specifically, it set zero payments, against debts of approximately 74,000.00 and 72,000.00 euros for each of the applicants, judging that the obligation to pay monthly installments would lead to their impoverishment, which would violate the general principle of law according to which no one is obliged to do the impossible.
Therefore, the total "haircut" amounted to the amount of 74,000.00 and 72,000.00 euros for each of the applicants, occupying 100% of the loans.
The following is the text of the Decision (edited only to delete the names of the parties, published in the Legal Information Bank LAW):
THE JOURNAL OF PEACE OF GIANNITSA, VOLUNTARY JURISDICTION PROCEDURE (Law 3869/2010) WAS ESTABLISHED by the Justice of the Peace of Giannitsa, Lazaros Kapsalis, who was appointed by an act of the President of the Court of First Instance of Giannitsa, with the collaboration of the Secretary Paschalina Papadopoulou. MEETING publicly, in its hearing, on May 11, 2018, to try the application with protocol number ....................., between: THE APPLICANTS: 1) ....................., with .................... and VAT number ........................ and 2) .........and ................, with ID number .............. and VAT number ..............., both residents of ............, who appeared in Court the first after and the second through their attorney-in-fact, Thomas Kalokyris. THE PARTICIPANTS IN THE CREDIT TRIAL, which became parties after their legal summons (art. 5 of Law 3869/2010 and 748 par. 2 of the Code of Civil Procedure): 1) Anonyme Banking Société anonyme with the name "..........................", headquartered in Athens at .............. street no. ...... and is legally represented, which did not appear and was not represented by a proxy lawyer 2) An Anonyme Banking Company with the name "..................", located in Athens on ................ Street No. .......and is legally represented, which appeared in Court through the proxy of its lawyer, .......3) An Anonyme Banking Company with the name "................", located in Athens on ................ Avenue No. ............... and legally represented by its liquidator, who did not appear and was not represented by an attorney-at-law and 4) The Greek State, based in Athens and legally represented by the Minister of Finance, who was represented by his attorney-at-law, ...... The applicants requested that their application of 18-4-2017, which was filed with the Court's registry under protocol number ..../19-4-2017, be accepted, initially determined at the hearing of 16-3-2018 and after a postponement at the hearing referred to at the beginning of this. During the discussion of the case, the attorneys-at-law of the parties present developed their claims and requested that what is stated in the minutes and in the written proposals they submitted be accepted. AFTER STUDYING THE CASE IT WAS DECIDED IN ACCORDANCE WITH THE LAW From the service reports of the bailiff of the Athens Court of Appeal with its seat at the Athens Court of First Instance Nos. ....../24-4-2017 and ......./24-4-2017, submitted and relied on by the applicants, it appears that an exact certified copy of the application under consideration with a summons for discussion for the hearing of 16-3-2018 was legally and timely served on the first and third defendants of the creditors' application respectively. At this hearing, the hearing of the case was postponed and a new hearing was set, with a note on the board, as referred to at the beginning of this. According to the provision of paragraph 4 of article 226 of the Code of Civil Procedure, in the regular procedure and in any special procedures where a register is kept, if both parties are present or when one of them is present and requests an adjournment, while the other party is absent, although he was legally summoned, the registration of the case in the register is considered as a fictitious summons (see A.P. 653/1992 Hellenic Republic 1994, 89-90). When the case was read out from the order of the relevant register in the present hearing, the above creditors did not appear and therefore, since it is considered that they have been summoned, they must be tried as if they were present (article 754 paragraph 2 of the Code of Civil Procedure in conjunction with articles 591 and 741 of the same code). From the general principle of equality, established in art. 4 para. 1 of the Code, three distinct regulatory precepts are derived: a) the claim for equality, i.e. the equal application of the Laws to all, b) the claim for general and abstract regulation and c) the claim for equal treatment of all similar cases by the Legislator. Consequently, the principle of equality also binds the Legislator himself, whose non-compliance is subject to judicial review, as art. 4 par. 1 of the Code establishes not only the equality of citizens before the Law, but also the equality of the Law before the citizens. During this judicial review, which is a review of limits, and not a review of the choices in principle or the substantive content of the legal rules, the expediency of enacting a provision of Law is not examined, but the Courts strictly examine only the violation of the limits that are erased by the principle of equality and which exclude manifest unequal treatment in the form of the introduction of a purely gratuitous measure or a privilege not linked to evaluative criteria (see Kofinis in the Collective Work “Constitution Article by Article Interpretation”, ed. Sakkoulas, 2017, pp. 54-55 and Chrysogonos “Individual and Social Rights”, ed. Ant. N. Sakkoulas, 2002, pp. 117-118 and 120). Furthermore, public burdens are the monetary benefits of private individuals to the State without specific consideration. From the provision of art. 4 par. 5 of the Tax Code, it follows that tax laws cannot unjustifiably discriminate or impose a disproportionate and excessive burden on certain citizens or categories of citizens. The principle of tax equality, established in the immediately above article, imposes the same tax treatment of individuals who are under the same economic conditions (horizontal tax equality) and the unequal treatment of those who are under different conditions (vertical tax equality), so that neither the unequal treatment of similar cases nor the equal treatment of dissimilar ones is constitutionally tolerable (see Gertsos in the Collective Work “Constitution Article by Article Interpretation”, Sakkoulas ed., 2017, p. 1210 and Finokaliotis “Tax Law”, Sakkoulas ed., 1999, p. 140). The same above provision specifies what can, but also what must constitute a criterion for different treatment, and this is the strengths, i.e. the financial capabilities of the citizen. To this criterion, some others could be added, which are explicitly and clearly provided for by the Constitution itself, such as the protection of the family, the disabled, the sick and the needy and the care for the acquisition of a first home by those who lack it (art. 21 of the Constitution), as well as the promotion of the economy of mountainous, island and border areas (art. 106 par. 1 of the Constitution). In particular, from the State's obligation to care for the needy, an indirect argument in favor of tax exemption of a minimum maintenance limit can be derived. Moreover, the Constitutional Legislator, supplementing the above principle of equality in public burdens, stipulates in the provision of art. 78 par. 1 of the Constitution the elements from which, and only from which, tax capacity can be presumed (income, property, expenses and transactions, see Kofinis ibid., p. 66, Gertsos ibid. p. 1210 and Finokaliotis-Barbas “Public Economic Taxes-Public Loans”, Sakkoulas ed., 2001, pp. 64-65). However, other criteria, apart from these, cannot constitute a legitimate reason for different treatment, as, otherwise, the provision of par. 5 of art. 4 of the Code would lose, through its interpretation, its specific regulatory content. Consequently, tax exemptions, even if deemed legitimate, still constitute an exception to the rule of equality in public burdens and, therefore, must be interpreted narrowly, as only a specific explicit constitutional provision could justify them (see Chrysogonos ibid., pp. 142-144). Moreover, the amount of a borrower's monthly installments to a banking company to service his loan obligations is not deducted from his income, but is simply taken into account as an additional living necessity and as a determining element of the value of his property and his living conditions (see, for example, ΜΡΑθ 3272/2016 adm.). To this end, it is declared annually in the E-1 submitted by each taxpayer, specifically in codes 727-728 (expense for the interest-based amortization of loans of any form) of Table 5, paragraph 2 (Determination of Annual Objective Expense). With paragraph 2 of art. 1 of Law 3869/2010, as amended by Law 4336/2015, the scope of application of Law 3869/2010 also includes confirmed debts to the Tax Administration in accordance with the Tax Procedure Code (TPC), the Public Revenue Collection Code (PRC) and the Customs Code, as they have been formulated based on the surcharges and late payment interest that are imposed on them, provided that these debts coincide with debts to private creditors, that is, primarily, with debts to banks. Moreover, according to art. 11 of Law 3869/2010, provided that the debtor pays all the installments defined in the context of par. 2 of art. 8 and par. 2 of art. 9 of Law 3869/2010, will be exempted from the remainder of his debts, regardless of their amount, saving both the property that constitutes his main residence, and other assets, the sale of which was not deemed necessary by the competent Court (e.g. cars, assets that are difficult to liquidate, such as percentages on agricultural plots, etc.). However, the above provision of par. 2 of art. 1 of Law 3869/2010, according to what has been stated above, is manifestly unconstitutional, as it introduces as a condition for the exemption of the citizen from taxes that he is obliged to pay, the status of the applicant for the exemption from the tax as a debtor to a private creditor and, more specifically, as a debtor to a banking company. This criterion is not constitutionally acceptable, as it is not included in those that can constitute a reason for different tax treatment. Furthermore, the exemption of the applicant from his tax obligations as defined in Law 3869/2010 is not based on general and objective criteria, but on completely arbitrary ones. Finally, this provision is contrary to the principle of tax equality, as it does not impose uniform tax treatment on citizens who are in the same personal, family and income situation, but unjustifiably places those subject to the above provision in a more favorable financial situation than that of other taxpayers (see EirAth 1588/2016 adim, EirPatr 915/2017, EirPeir 120/2017, 20/2017EirPyrgKrēt, 40/2018 EirPatr NOMOS). More specifically, the applicant for his affiliation to Law 3869/2010 will be able to be exempted from almost the entire amount of the tax corresponding to him, in contrast to the citizen who is in a similar income, property and family situation to the applicant for his affiliation to Law 3869/2010, but does not owe any amounts of money from loans that he may have taken out with banking companies and who will be called upon to pay the entire amount of the tax corresponding to him with any advance increases and late payment interest that may be imposed on him. An argument in favor of the constitutionality of the above provision cannot be derived from art. 102 Bankruptcy Code, according to which the State may consent to a reduction of its claims against the debtor under the same terms that a private creditor would reduce its claims under the same circumstances (and, now, after its amendment by art. 6 par. 4 L.4446/2016, may consent to the conclusion of a reorganization agreement, by signing the agreement under the same terms that a private creditor would consent under the same circumstances), as: a) in the bankruptcy of a merchant, all of his assets are sold, including his main residence (see art. 16 par. 1 Bankruptcy Code), and in the reorganization procedure there is no provision corresponding to par. 2 of art. 9 L.3869/2010 and b) the above-mentioned consent of the State is not the result of an immediately enforceable court decision, but is at its discretion, and the State, in order to consent, takes into account the income and property situation of its debtor, which does not happen in the procedures of L.3869/2010, and especially when the case has been brought to the hearing for discussion, after the failure of the pre-trial settlement. Moreover, the above provision of the PwC was enacted, according to the Introductory Report of L.3588/2007, in order to facilitate the more effective conclusion of an agreement, that is, it is a provision that was enacted with a view to the most effective defense of the interests of the State. On the contrary, L.4336/2015, which brought the above amendment to art. 1 par. 2 of Law 3869/2010, is not accompanied by an Explanatory Report. With the application under consideration, as admissibly supplemented by a statement of their attorney before the court hearing, which was recorded in the minutes of the same number hereof, the applicants, citing a lack of bankruptcy capacity and a permanent inability to pay their overdue financial debts, request that the proposed plan for the settlement of their debts be ratified or amended as provided for in article 7 of Law 3869/10, with the consent of their creditors, so that it acquires the force of a court settlement, and, in the alternative, that the settlement of their debts be ordered in accordance with art. 8 par. 1 and 2 of the same law, to exclude from the sale the movable and immovable properties of the applicants described in the application, to recognize that by complying with the settlement of their debts they will be relieved of their debts to their creditors and to offset the legal costs between the parties. With this content and requests, the application considered competent is brought for discussion before this court (article 3 of law 3869/2010) in the region of which the applicants have their residence and in accordance with the special procedure of voluntary jurisdiction of articles 741 to 781 in combination with article 3 of law 3869/2010. Also legally submitted are the responsible declarations of the applicants themselves, regarding the correctness and completeness of the statements: a) of their own property and income and their spouse's or their spouse's, respectively, and b) of their creditors and their claims in terms of capital, interest and expenses, as well as the non-transfer of real rights over their real estate during the last three years, and the required documents referred to in art. 4 par. 2 of Law 3869/2010 as in force after its replacement by par. 4 of article 1 of subparagraph A.4 of article 2 of Law 4336/2015 (Government Gazette A 94/14-8-2015) and occupies, in accordance with par. 5 of article 2 of subparagraph A.4 of article 2 of Law 4336/2015 (Government Gazette A 94/14-8-2015) the applications submitted after 19.8.2015, which were filed with the court's registry within the deadline. Furthermore, from the court's ex officio investigation of the records kept, it emerged that no other relevant application by the applicants is pending, nor has a decision been issued at an earlier time for the regulation and discharge of their debts (article 13 par.2 of Law 3869/2010). The application, which includes all the necessary information provided for by article 4 par. 1 L.3869/2010, is definite, insofar as it contains 1) permanent inability to pay their overdue debts - natural persons not having bankruptcy capacity 2) a statement of their property and incomes and those of their spouse, respectively 3) a statement of their creditors and their claims in terms of capital, interest and expenses 4) a plan for the settlement of their debts and 5) a request for their regulation with a view to their discharge as provided for by law, and no other element is required for the completeness of its definition (Ath. Kritikos, Regulation of the debts of overindebted natural persons, edition 2010, p. 43, par. 12 and 13), the relevant claim of the creditor of the applicants regarding its indefiniteness being rejected, given that beyond the above, no no other element is required for the determination of the application, and the elements referred to by them as missing elements do not constitute elements of the determination of the application and are among those that will arise from the evidentiary procedure during the investigation of the substantive validity and in particular the conditions for the applicants' subordination to the regulation of Law 3869/2010 since, as follows from the provisions of articles 744, 745, 751 of the Code of Civil Procedure, the peculiar nature of voluntary jurisdiction as a means of protecting mainly public interests, requires the active participation of the judge in the collection, investigation and evaluation of the actual material of the trial and allows the possibility of supplementing with the proposals, and in the magistrate's court and orally during the discussion in the audience (art. 115 par. 3 of the Code of Civil Procedure), those elements of the application referred to in article 747 par. 2 Code of Civil Procedure (see EfATH 1639/07 AP 640/03 Hellenic 45, 1347, AP 1131/87 Nov 36-1601-02 majority, EfATH 2735/2000, 4462/2002, 2188/2008 TNP-NOMOS and EirPatr 25/2013, EirCorinth 121/2012, EirKav 161/2012, EirLavr 193/2012 NOMOS K. Bey Code of Civil Procedure article 758 par. 3 no. 16 pages 326 and 330, P. Arvanitakis in the Code of Civil Procedure Keramea - Kondyli - Nika, under article 747, no. 7, Ath. Kritikos, Regulation of the debts of over-indebted natural persons, ed. 2012, pp. 104- 107, no. 41-45 and E. Kiouptsidou-Stratoudaki, Armen. 64- Reprint, p. 1477). It is also legal, based on the provisions of articles 1, 4, 5, 6 par. 3, 8, 9 par. 2 and 11 of Law 3869/2010, except for the debts referred to therein to the fourth defendant, due to the contradiction of article 1 par. 2 of Law 3869/2010, as in force after its amendment by Law 4336/2015, with the provisions of articles 4 par. 5 and 78 par. 1 Synt., in accordance with the provisions of the main paragraph of this present case, as well as the requests: a) to ratify the settlement plan pursuant to art. 7 of Law 3869/2010, which is unlawful, since the ratification of the settlement plan or the ratification of the plan amended by the parties, pursuant to art. 7 of Law 3869/2010, is not the subject of the request pursuant to art. 4 par. 1 of this law, but a legal consequence of the free agreement of the parties, in the event that they all consent to it, in which case the Justice of the Peace, after ascertaining the above-mentioned achievement of a compromise, by his decision ratifies the plan (or any amended plan, since, despite the fact that the provisions of articles 5 par. 1 and 7 par. 1 after the amendment of Law 4161.2013 do not refer to an amended plan, such a restriction is not placed on the compromise under articles 214A and 293 of the Code of Civil Procedure in the regular procedure, let alone in the voluntary jurisdiction that regulates the entire procedure of Law 3869/2010 and allows the parties to propose claims until the end of the discussion - article 745 of the Code of Civil Procedure -, therefore the parties and the Court are not bound by the initial repayment plan but may reach a different result), which from its ratification becomes effective court settlement. The Court, at the procedural stage from the filing of the application with the Court Secretariat until the hearing, does not have the power to oblige the parties or creditors to settle and therefore the said request has no legal basis and b) to recognize that by complying with the Court's regulation they will be relieved of their debts, which is inadmissible, as the request to relieve the over-indebted debtor (and not the requested recognition) of any remaining debt under art. 11 par. 1 of Law 3869/2010 constitutes a request and content of a subsequent application submitted to the Court after the regular execution of the obligations imposed on him by the decision issued on the application of art. 4 par. 1 of the same law, as this is explicitly referred to in par. 3 of art. 11 L 3869/2010 according to which “The court, upon the debtor’s request notified to the creditors, certifies his discharge from the remaining debts.” The request must therefore be investigated subsequently for its substantive validity, provided that no judicial settlement was reached between the applicant and his creditor. The second defendant creditor denies the application and, through an oral statement by her attorney, which was recorded in the minutes of the same number as this one, raised the following objections, which she sets out in more detail in her legally filed motions: a) the objection of vagueness, to which the above applies; b) the objection of the applicants' fraudulent inability to pay on the grounds that at the time of their loan they knew that they would not be able to meet their obligations due to the level of their income, which is legal and must be further examined on its merits. c) the objection of abusive exercise of rights, claiming that the applicants are requesting their exemption from a large part of their debts without proving a permanent inability to pay and their proposal to regulate their debts excessively harms the defendant, which is deemed to be rejected as unlawful, because the specific facts they invoke are not sufficient to establish it and, even if true, do not exceed the extreme evaluative limits set by the rule of article 281 of the Civil Code, given that the aim of the provisions of Law. 3869/2010, on the basis of which the legal application is filed, is the reinstatement of the over-indebted citizen in economic and social life by regaining the financial freedom that entails the elimination of debts that he is unable to repay, and the aforementioned law aims at the possibility of a second chance for the over-indebted natural person with the collective satisfaction of the creditors and d) the objection of dishonest declaration regarding the assets and income of the applicants, which is legal and will be examined further on its merits. From the undisclosed testimony of the first of the applicants, in the hearing of this Court, which is assessed in itself, but also in combination with the other evidence, from the documents that are admissible and legally presented by the parties, either as independent means of evidence, or in order to serve to establish judicial presumptions (articles 336 para. 3 and 395 of the Code of Civil Procedure), for some of which special reference is made, without however omitting any for the essential diagnosis of the present dispute, from what the parties claimed in the hearing, from the direct and indirect confessions that arise from their claims (articles 261, 352, 339 of the Code of Civil Procedure), the lessons of common experience that the Court takes into account ex officio and without proof, from the real facts that are well known, so that there is no doubt that they are true, which are also taken into account ex officio (art. 336 par. 1 and 4 of the Code of Civil Procedure) and from the general procedure, the following facts were proven, in the opinion of the Court: The applicants, ...................., 60 years old and ......................., 56 years old, are spouses, reside in ........................................, where they are hosted by the parents of the former and have two adult children, aged 32 and 28 years old. The applicant is a farmer and in recent years his income from his agricultural activity has been zero. The applicant in the past worked as a worker in the company "...................... SA" earning the amount of approximately 735 euros per month, while since April 2017 she has been unemployed. The applicants do not have any other income beyond the above, the relevant objection of the second creditor being rejected as essentially unfounded, as the evidentiary process did not show that the applicants earn an income higher than that declared. The total family income of the applicants amounted to 19,816.83 euros, 20,352.49 euros, 17,922.38 euros, 16,390.39 euros, 13,724.74 euros, 16,408.88 euros, 10,846.15 euros, 10,339.51 euros, 7,306.65 euros, 6,521.29 euros and 8,960.77 euros respectively in the years 2004, 2005, 2006, 2007, 2008, 2009, 2012, 2013, 2014, 2015 and 2016 (see photocopies of income tax statements for the respective years) and in monthly reduction of 1,651.41 euros, 1,696.04 euros, 1,493.53 euros, 1,365.86 euros, 1,143.72 euros, 1,367.40 euros, 903.84 euros, 861.62 euros, 608.88 euros, 543.44 euros and 746.73 euros. The family expenses of the applicants are limited to those required to meet their living needs. In a year prior to the filing of the application in question, the applicants had undertaken the following debts, which are either secured by guarantees or not, are considered to be overdue upon notification of the application and the latter are calculated at their current value at the time of notification of the application (Ath. Kritikos, Regulation of debts of over-indebted natural persons and other provisions - Law 3869/2010, Athens-2010 p. 98 et seq.), while those secured in rem continue to bear interest at the interest rate of the current debt until the time of issuance of this decision (art. 6 par. 3 of Law 3869/2010): A) to the first applicant, ....................: 1) The second creditor ".............." has granted him, with the contract number .................., a housing loan, from who owes until 27-9-2016 the amount of 65,839.44 euros, while no data was provided for its amount at the time of notification of the legal application, because until then it continues to accrue interest. 2) The third creditor “..............................” has granted him a loan under contract number .................., to which he was a guarantor, from which he owes until 5-4-2017 the amount of 8,787.64 euros, while no data was provided for its amount at the time of notification of the legal application, because until then it continues to accrue interest. Therefore, the total amount of the applicant's debts amounts to 74,627.08 euros. B) to the second applicant, ...........................: 1) The second creditor «......................» has granted her, under the contract number .............................., a housing loan, from which she owes until 27-9-2016 the amount of 65,839.44 euros, while no information was provided on its amount at the time of notification of the legal application, because until then it continues to accrue interest. 2) The first creditor «......................A.E.» has granted her, under the contract number ........................, a loan, from which she owes until 24-10-2016 the amount of 6,396.70 euros, while no information was provided on its amount at the time of notification of the legal application, because until then it continues to accrue interest. Therefore, the total amount of the applicant's debts amounts to 72,236.14 euros. The applicant has full ownership of: 1) a plot of land no. ..., located at "..........." in the land area ....................................., with a total area of 3,875.00 sq.m., with an objective value of 5,700 euros 2) a plot of land no. ....., located at "................" in the land area ........................, with a total area of 2,187.00 sq.m., with an objective value of 3,100 euros and 3) a plot of land no. ..., located at "......................." in the land area ..........................., with a total area of 7,305.00 sq.m., with an objective value of 10,000 euros. In the opinion of the Court, the sale of the above properties of the applicant is not required to repay its debt, given that due to their low value due to the downward trend in property prices and their location, it is expected in combination with the lack of purchasing interest during this period that they will not attract buyers and an attempt to sell them will likely be fruitless, burdening the settlement process with additional costs. In addition, the applicant exploits these properties, earning some annual income, any sale of these would deprive him of his only means of livelihood. The applicant also owns the vehicle with registration plate number ......................... I.C.F. a car, manufactured by Volkswagen, type 0707, first released in 1998, worth approximately 2,000 euros, which, in the opinion of the Court, should be excluded from the sale due to its low value and because it is used for the applicant's agricultural work, and its offer for sale will not generate any purchasing interest, nor will it yield any significant price for the satisfaction of the creditors, taking into account the costs of the sale procedure * (liquidator's fee, publication costs, etc.). The applicant owns a field located at the location ".............." of the Municipal District ........................... of the prefecture of Imathia, with a total area of 2,900 sq.m., worth approximately 2,000 euros. It is noted that the applicant did not include the above plot of land in her considered application. Given that all the procedures provided for and regulated by Law 3869/2010 aim to facilitate the honest and bona fide debtor, who, without fraud, has become generally and permanently unable to pay his overdue financial debts, such a debtor, in order to claim the provisions of the Law, must honestly declare the information requested by the Law, and the honesty of these information is also crucial for the Court's stance in formulating its decision. This applies to the procedure that begins with the submission of the application of par. 1 of art. 4 of Law 3869/2010, as well as to the debt adjustment period. Indeed, the provision of par. 1 of art. 10 of Law 3869/2010 stipulates that the debtor is obliged to submit a truthful declaration: a) about his assets and b) about his income. Consequently, a violation of the duty of honesty exists if the debtor conceals income or assets, so as to either appear to have reduced financial capabilities, in order to illegally achieve reduced satisfaction of his creditors, or to present his assets at a reduced level, in order to avoid their liquidation. This violation may be invoked by any creditor within one year from the moment he was informed of the difference between the debtor's actual situation and the declared one. Although the Law refers to a "request" by the creditor, it is a given that if the request of art. 4 par. is pending 1 of Law 3869/2010, this claim may be submitted by way of objection. Dishonesty regarding these two (under a' and b') elements, in the event that it is done out of malice or gross negligence, results in the rejection of the application and may lead to the debtor being disqualified from the procedure. This fault of the debtor has to do with his concealment of his existing property or income situation. The debtor acts out of malice when he knowingly submits a false, i.e. non-repudiating, statement, without the need for any additional element, while negligence is characterized as gross when the deviation from the measure of the behavior of the average prudent and diligent person is unusual and particularly large. Slight negligence does not harm. In order for these adverse sanctions to be imposed on the debtor, it is not required that his behavior has reduced the satisfaction of the creditors, it is sufficient that his incorrect or incomplete statements are likely to reduce their satisfaction (see EirChanion 262/2011, EirAth 223/2011 adm. and EirThiven 3/2013 1st Publication NOMOS). However, in the case where an asset of the debtor is not mentioned by mistake, the existence of which is clearly evident from the other documents submitted by the debtor and deposited with the Secretariat of the competent Court, or if his omission is not capable of reducing the satisfaction of the claims of his creditors, then his application is not considered to be rejected due to a breach of the duty of honest declaration. This is because this omission of the debtor is not, in such a case, likely to cause any kind of harm to his creditors. In the opinion of the Court, the sale of the above property of the applicant is not required to repay her debt, given that due to its low value due to the downward trend in property prices and its location, it is expected, in combination with the lack of purchasing interest during this period, that it will not attract buyers and an attempt to sell it will likely be fruitless, burdening the settlement process with additional expenses. In addition, the above property is exploited by the applicant - the applicant's husband, earning some annual income, any sale of these will deprive them of their only means of livelihood. Consequently, the above omission of the applicant, as well as the fact that the vehicle with registration number ..................... P.H. is not mentioned The applicant's two-wheeled motorcycle, which should also be exempt from sale, is not sufficient to reduce the satisfaction of the claims of their creditors and there is no evidence, in the opinion of the Court, of a breach of the duty of honesty on their part. The applicant also owns in an undivided percentage of 50% the vehicle with registration plate number ......................... IX.E. a car, manufactured by Seat, type Ibiza, 1,390 cc, first released in 2006, worth approximately 1,800 euros, which, in the opinion of the Court, should be excluded from sale due to its low value and because it is used only for the transportation of the applicant and her family, and its offer for sale will not generate any purchasing interest, nor will it yield any significant price to satisfy the creditors, taking into account the costs of the sale procedure (liquidator's fee, publication costs, etc.). The applicants have ceased to service these loans and thus, since 2016, they have become permanently unable to pay their overdue financial debts. This inability was not proven to be due to fraud, but to the reduction in their income compared to previous years, a fact that they could not foresee when taking out the loans (as their loan obligations were taken out before the applicant became unemployed and during the period when the applicants were working with higher earnings), combined with the fact that their cost of living has increased, they have significantly reduced their income, resulting in it not being sufficient to cover their necessary living expenses. This judgment, regarding the permanent inability to pay their overdue debts, is deduced from the relationship of their liquidity to their overdue obligations. That is, this relationship is negative in the sense that, after deducting the expenses for covering their living needs, their remaining liquidity does not allow them to meet the volume of their debts or at least a substantial part of them. Consequently, the applicants meet the conditions for their subordination to the regulation of Law 3869/2010 and in particular to that of Articles 8 par. 5 of Law 3869/2010, i.e. zero payments are set by the applicants for three years, since the applicant is unemployed, and their family income from the applicant's work is not sufficient to cover the basic living needs of their family, which are covered mainly due to the payment of non-fixed fixed amounts by the applicant's parents, while the obligation to pay monthly installments would lead to impoverishment of the debtor applicants, which would violate the general principle of law according to which no one is obliged to do the impossible (AP 288/2000 DEE 2000, p. 743). Because the current unfavorable financial situation of the applicants will obviously be permanent, taking into account the age of the applicant, who is already 56 years old, the difficulty of finding work due to the difficult economic situation of the country, since according to official statistical reports, unemployment approached 20%, and the applicant's earnings from agricultural work are gradually decreasing, with the result that they are unable to meet even their living needs, the Court considers it unnecessary to reassess her financial situation, since it considers that it is not going to improve. In view of the above, the considered application in relation to the second of the defendants must be rejected as unlawful and accepted as well-founded in substance with regard to the other creditors and the provisions set out in the operative part of the present judgment must be ordered. A default fee is not specified, because there is no provision for filing an objection to default. Court costs are not awarded in accordance with article 8 par. 6 of Law 3869/2010. FOR THESE REASONS, IT TRIALS in the absence of the first and third defendants and in the absence of the other parties. REJECTS the application in respect of the fourth defendant. ACCEPTS the application in respect of the first, second and third defendants. IT ORDERS zero monthly payments for the applicants' debts to their creditors for a period of three (3) years from the publication of this Court's decision, namely until 27-7-2021, at which time the applicants are discharged. JUDGED, decided and published in its hearing, in an extraordinary, public session, in Giannitsa, on August 24, 2018, without the presence of the parties and their attorneys.
Thomas Steph. Kalokyris Lawyer, MDE
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