DECISION NUMBER 1103 / Φ3837 / 2015
THE ATHENS JUSTICE COURT
VOLUNTARY JURISDICTION PROCEDURE
It was formed by the Justice of the Peace of Athens, E. G., who was appointed by the President of the Three-Member Board of Directors and the Secretary, A. A.
It sat in public in its audience on 21.05.2015 to try the case between:
OF THE APPLICANT: A. P. of H., resident of Chaidari, Attica, __ street, no. __, who was represented by his attorney-in-fact, Saint Zervea.
OF THE PARTICIPANT IN THE CREDIT TRIAL, which became a party after being legally summoned (article 5 of Law 3869/2010, as in force before its replacement by article 13 of Law 4161/2013):
A banking company under the name "PIRAEUS BANK S.A.", headquartered in Athens, 4 Amerikis Street, as legally represented, which was represented by its attorney-in-fact, A. K.
The applicant requests that his application dated 24.07.2012, which was filed with the Court Secretariat under number __ and was determined to be discussed at today's hearing, be accepted.
During the discussion of the case, the attorneys for the parties developed their claims and requested that what was stated in the minutes and in the motions they submitted be accepted.
STUDY THE FILE
IT WAS THOUGHT IN ACCORDANCE WITH THE LAW
In his application under consideration, as legally supplemented by a statement of his attorney during the hearing, the applicant claims that he is permanently unable to pay his overdue financial debts to the creditor bank referred to in the list of creditors contained in the application and requests the settlement of his debts and his release from them, in accordance with the settlement plan he submits. He also requests that the property described in the application, which serves as his main residence, be excluded from the sale.
With this content, this application is brought to the attention of this court, under the procedure of voluntary jurisdiction (article 3 of law 3869/2010) and for its admissibility, the following are legally submitted: a) the certificate of failure of out-of-court settlement dated 20.02.2012, signed by the Consumer Ombudsman, Evangelos Zerveas, and b) the solemn declaration of the applicant dated 27.07.2012 (article 4 par.2, paragraphs a and b of law 3869/2010, as in force before being replaced by article 12 par.1 of law 4161/2013). Also, from the court's ex officio investigation of its records, in accordance with article 13 par. 2 of law 3869/2010, it emerged that no other application by the applicant is pending, nor has another decision been issued for the regulation and discharge of his debts. It is legal and definite. It is based on the provisions of articles 1,4,8,9 and 11 of law 3869/2010 and must be further investigated as to its substantive validity, since no judicial settlement was reached between the applicant and his creditor and the relevant advance payment notes for contributions were filed by the lawyers representing him.
From the applicant's oral testimony examined in court and from all the documents submitted by the parties, the following facts were proven:
The applicant, currently 61 years old, is married to E. D. and they have an adult daughter who lives with them. From 1981 until July 2009, when he was dismissed, he worked as a civil engineer in the company called NTI-ES S.A. Then, in September 2009, he was hired by the company DIATONOS ATE, where he worked in the same specialty until November 2011, when he was dismissed. Subsequently, the applicant, on 14.05.2012, submitted an application to the IKA of Peristeri for an old-age pension, which will be awarded to him at the end of 2015 and will amount to approximately 1,200 euros according to his testimony in court, without having had any income since then (see income tax statements for the financial years 2013 and 2014). Moreover, the applicant's wife is a lecturer at the University of Athens with a monthly salary of 1,564 euros, both now and at the time of the deposition (July 2012) (see the submitted salary statements for the months of March to May 2015, as well as the income tax statement for the financial year 2013). It should be noted here that the applicant's family income in the financial year 2009, i.e. one year after receiving his loan, amounted to 3,851 (2,137+1,714) euros per month, while in the following financial years, 2010, 2011 and 2012, it amounted to 3,826, 3,756 and 2,265 euros respectively, as shown by the relevant tax returns submitted.
Furthermore, the applicant, from the housing loan with account number 00010212600002223719, which he received in a year prior to the filing of the application under consideration, currently owes the creditor bank participating in the trial, as a co-debtor with his wife, the total amount of 267,411.82 euros, with an obligation to pay a monthly installment of approximately 1,700 euros together with his wife, according to the account statement of the above loan submitted by the creditor participating in the trial. The applicant stopped paying the above installment before the filing of the application under consideration, with the result that it became overdue.
From the above mentioned, regarding the applicant's income and debts, taking into account his family expenses, it appears comparatively that he was not able to meet his overdue debts to the creditor bank, with the result that he has been, at least since the time of filing the application in question, without malice, in a permanent inability to pay his overdue financial debts. In fact, due to his age and the deep crisis that is plaguing the country, he has no prospects of significantly improving his financial situation.
The applicant, apart from his main residence, which he requests to be exempted from the sale and which will be discussed in detail below, does not own any other assets. The private car with registration number YPE __ referred to in the application, which belonged to him under 50%, was withdrawn after the exercise of the right, as is apparent from the receipt certificate of the EDOE with number 33911/19.06.2014. However, the following should be noted here: The applicant filed: a) against the company NTI-ES S.A., dated 31.07.2009 and with filing number __/2009, his lawsuit before the Single-Member Court of First Instance of Athens, requesting dismissal compensation of 124,024.08 euros and b) against the company DIATONTOS ATE, dated 26.07.2011 and with filing number 148,866/4,675/06.09.2011, his lawsuit before the same court, requesting the amount of 29,032.12 euros due to non-payment of the remuneration due for the provision of his work there. However, the court cannot yet take into account the above claims as assets of the applicant, since the disputes have not been finally settled or resolved by compromise. However, if the applicant is ultimately vindicated, he must notify the change that has occurred and update the file kept in the secretariat of this court [A. Kritikos, settlement of debts of over-indebted individuals, 2014, p. 101 et seq.].
Consequently, the court, because the applicant does not have any income now and until December 2015 through no fault of his own and is in fact living on his wife's income while waiting to be granted his old-age pension from IKA at the end of the year, which will amount to approximately 1,200 euros per month, must, in accordance with article 8, paragraphs 2 and 5 of Law 3869/2010, settle his debts and oblige him to pay his creditor for a period of five (5) years (60 months), starting from the first month after the publication of this decision, the following amounts: a) for the period of the first five (5) months [August 2015 to December 2015], the amount proposed by the same of one hundred and fifty (150) euros per month and b) for the period of the next fifty-five (55) months, that is, until a total of five years is completed, the amount of eight hundred (800) euros per month. This amount is equal to the amount that will remain for the applicant to dispose of from the monthly pension that he will receive from January 2016 onwards (1,200 euros), after deducting his participation in family expenses amounting to 1,200 euros per month, the amount of 400 euros, while the remaining 800 euros per month to cover family needs, will be contributed by his wife, who has a monthly income of 1,564 euros.
Furthermore, the applicant is the exclusive owner of the 1st apartment (horizontal ownership) of the first floor above the ground floor of a three-story building, located in Chaidari, Attica, at __ street, no. __, with an area of 111 square meters and a percentage of co-ownership in the plot 163/10000 indivisible, which he uses as his main residence. The above apartment has an objective value of 106,060.50 euros, as shown by the submitted ENFIA declaration for the year 2014. In other words, its value does not exceed the tax-free acquisition limit for a married person provided for by the applicable provisions, increased by 50% and therefore it must be excluded from the sale after the submission of a relevant liquidation proposal by the applicant.
From the aforementioned monthly payments of the applicant to his creditor, only part of his debts will be covered, specifically 44,750 (5 months X 150 +55 months X 800) euros, out of a total debt of 267,411.82 euros. The satisfaction of the remaining claims of the creditor (222,661.82 euros) will be made by further payment of an amount to save the applicant's main residence, which will amount to 80% of its objective value, i.e. to the amount of 84,848.40 [106,060.50 X 80%] euros, the request for payment of a smaller amount being rejected as unlawful, since the applicant's debts are greater than 80% of the objective value of his main residence [A. Kritikos, Settlement of debts of over-indebted individuals, 2014, page 337 et seq.]. The repayment of this amount will be made in accordance with the law, at an interest rate that will not exceed the average interest rate of a floating-rate mortgage loan, which will be in effect at the time of repayment, according to the statistical bulletin of the Bank of Greece and without compound interest, while the interest-free repayment period of this amount, which will be made in monthly installments, must be set at 15 years. Each of the above monthly installments amounts to 471.38 euros [84,848.40: 180 months] and the first of these will be paid after the lapse of five (5) years from the publication of this decision, since it is considered that the applicant should be granted a grace period.
Consequently, after the objections of the creditor participating in the proceedings are rejected, the application must be accepted as substantially well-founded and the applicant's debts referred to therein must be regulated, with the exception of the sale of his main residence, as stated in the operative part. The applicant's release from any existing debt balance against his creditor will occur in accordance with the law (article 11 par. 1 of law 3869/2010), after the proper execution of the obligations imposed on him by this decision. No court costs shall be awarded (article 8 par. 6 of law 3869/2010).
FOR THESE REASONS
It judges the conflict of the parties.
Accepts the application.
OBLIGATIONS the applicant to pay to the creditor participating in the proceedings for a period of five (5) years (60 months), the following amounts: a) for the period of the first five (5) months [August 2015 to December 2015], the amount of one hundred and fifty (150) euros per month, which will be paid in the first three days of each month and b) for the period of the next fifty-five (55) months [January 2016 and thereafter], in order to complete a total of five years (60 months), the amount of eight hundred (800) euros per month, which will also be paid in the first three days of each month.
EXCLUDED from the sale is the 1st apartment (horizontal property) of the first floor above the ground floor of a three-story building, located in Chaidari, Attica, at __ street, no. __, with an area of 111 square meters and a co-ownership percentage on the plot 163/1000 indivisible, which belongs to the exclusive ownership of the applicant and is used by him as his main residence.
OBLIGATIONS the applicant to pay for the above reason (saving his main residence) the total amount of 84,848.40 euros to the creditor bank participating in the trial, in monthly installments of a total amount of 471.38 euros each. These installments will be interest-bearing, with an interest rate that will not exceed the average interest rate of a floating-rate mortgage loan, which will be in effect at the time of their repayment, according to the statistical bulletin of the Bank of Greece and without compound interest, they will begin to be paid 5 years after the publication of this decision, within the first three days of each month and will last for 15 years.
It was judged, decided and published in an extraordinary public session in its audience, without the presence of the parties and their attorneys on 21.07.2015.
THE SECRETARY OF THE JUSTICE
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