LAVRIO PEACE COURT
VOLUNTARY JURISDICTION DEPARTMENT
Decision number
422/2017
THE LAVRIO PEACE COURT
Formed by the Probationary Justice of the Peace of Lavrio E. I. and the Secretary M. T.
He/She sat down. publicly in his audience on May 5, to judge between:
The applicant, who appeared with his attorney Alexandrou Cucumbers.
The creditors participating in the trial, which became parties after their legal summons (articles 5 of Law 3869/2010 and 748 par. 2 of the Code of Civil Procedure), and are represented as follows: 1) The banking company with the name "PIRAEUS BANK" headquartered in Athens, 4 Amerikis Street, as legally represented, which was represented by the attorney-at-law of D. P. and 2) The banking company with the name "NATIONAL BANK OF GREECE S.A.", headquartered in Athens, 86 Aiolou Street and legally represented, which was represented by the attorney-at-law of M. A..
With the application under consideration, the applicant, citing a lack of bankruptcy capacity and a permanent inability to pay his financial debts to the creditors referred to in the detailed statement contained in the application, requests the settlement of his debts, and the exclusion of his potential main residence, in accordance with the settlement plan he submits and after taking into account his financial and family situation, which he presents in detail, with the aim of partially relieving him of them.
The application with the above content and requests, is competently and admissibly brought for discussion to this Court, in the procedure of voluntary jurisdiction (art. 3 of Law 3869/2010 in conjunction with art. 739 et seq. of the Code of Civil Procedure) since the Court's ex officio investigation of the records kept revealed that no other similar application by the applicant is pending, nor has a decision been issued for the regulation and discharge of his debts. Furthermore, the application is legal, based on the provisions of articles 1, 4, 5, 8 and 9 of Law 3869/2010, as they apply after their amendment by Law 4161/2013, and therefore must be investigated as to its substantive validity, given that the advance payment notes for attorney's fees have been filed and no pre-trial settlement has been reached between the applicant and his creditors.
The defendants denied the application, and in order to reject it, they proposed admissible: A) the objection of the vagueness of the application, which is to be rejected as unfounded, since the application in question is definite, since it contains all the elements required by law (art. 4 par. 1 of Law 3869/2010) and specifically the applicant states: 1) that he is a natural person and is permanently unable to pay his overdue debts, 2) his lack of bankruptcy capacity, 3) the status of his property and income, 4) the status of his creditors and their claims, 5) a plan for settling his debts and 6) a request for their regulation with a view to his discharge as provided for by law, given that beyond the above, no other element is required for the definiteness of the application, and those referred to by the creditor as missing elements, do not constitute elements of the application and are subject to proof and counter-proof during the investigation of the substantive validity and, in particular, the conditions of the applicant's inclusion in the regulation of Law 3869/2010, B) the objection of abusive exercise of the applicant's right, due to the fact that, based on the proposed plan for settling his debts, he requests the application of the provisions of Law 3869/2010, to the detriment of the interests of the creditors but also due to the obvious disproportion, which consists of proposed payments against a large debt. The above claim must be rejected as unlawful, because even if the facts are assumed to be true, they do not constitute an abuse of rights under Article 281 of the Civil Code, since the exercise of the application is completely in accordance with the letter and spirit of Law 3869/2010, which provides the possibility of regulating the debts of a natural person by releasing them, while simultaneously assuming obligations towards the creditor, and this regulation finds legitimacy directly in the same rule of law, which requires that the citizen not be abandoned in a situation without a way out and no prospects, from which, moreover, the creditors cannot derive any profit. In any case, the application to the provisions of the above law is at the discretion of the Court and the application will be accepted only upon the establishment of the conditions of article 2 of this law, otherwise it will be rejected as essentially unfounded and C) the objection of the applicant's fraudulent entry into permanent inability to pay his debts, claiming in particular that the applicant, although he knew that his general financial situation did not allow it, nevertheless proceeded to take out the disputed loans, far exceeding the measure and prudence of the average consumer, accepting the possible result of the inability to pay his loan obligations in the future. With this content, this objection is indefinite and rejectable. This is because credit institutions are obliged to carry out the so-called "responsible lending" of their debtors and, as such, are obliged to examine the creditworthiness of each prospective debtor to meet his contractual obligations, servicing his payments. Consequently, a kind of co-responsibility and co-culpability of the lenders is recognized, as fraud on the part of the borrower is not understood simply by assuming a loan obligation, the servicing of which is precarious, but it is also required that the borrower cause ignorance of the precariousness to the creditors (EirThevon 2/2011, Legal Information Bank NOMOS). Fraud, therefore, could only be understood if the borrower deceived the employees of the credit institution by providing false information or by concealing his obligations that have not been registered in the databases used by the banks on the financial behavior of their customers (see in this regard Ath. Kritiko Regulation of the debts of over-indebted individuals edition 2012 p. 57, EirKalymn 1/2012 Nov 2012.563, EirMoud 2/2012, EirAlmop 60/2012, EirL.Ionias 4/2011, Legal Information Bank NOMOS), facts that in the present case, are not invoked by the objecting bank. Furthermore, if during the examination of the creditworthiness of the prospective borrower, it is established by the credit institution that he is unable to meet his contractual obligations by servicing his payments, in the context of the security of transactions, it must (the credit institution) refrain from lending (not to draw up the contract) to the detriment, even of his financial interests (EirLar 78/2013 ibid. with references therein.) Finally, the second of the defendants proposed the objection of inadmissibility of the application in question, due to the commercial capacity of the applicant, which is legal and must be further examined as to its substantive validity.
From the applicant's undisclosed testimony examined in court and contained in the minutes of the meeting of this court, which are identical to the present one, as well as the documents, which are admissibly and legally presented and invoked by the parties, the following was proven: The applicant is 48 years old and is married. He has been unemployed since 2012 and has zero income. From 2003 to 2011, he maintained a general partnership with his wife, of which he was a general partner with a percentage of 50%, but which was dissolved. However, although his status as a general partner gave him commercial status, the cessation of his payments occurred at a later time than the cessation of the operations of the company in question, a fact that the applicant invokes and proves with the submitted copies of the accounts of the disputed loans that he had received as the primary debtor, since, as he claims, the other loans for which he had guaranteed were paid by the primary debtors, from which it follows that indeed until approximately the end of 2013, he made continuous payments towards his debt, which came from the loan he had personally received from the Hellenic Bank (of which the first of the defendants is the special successor), a fact that the defendants did not prove or dispute. Consequently, the time of cessation of the applicant's payments occurred after the loss of his commercial capacity and, consequently, may be subject to the provisions of Law 3869/2010, in accordance with the provisions of the above legal opinion, thus rejecting as essentially unfounded the objection raised by the second defendant regarding the inadmissibility of the application in question. In the past, the applicant's income amounted, as his witness testified, to approximately the amount of 2,500 euros per month. In the past, the applicant's family income during the financial years was much higher, as is apparent from the submitted tax returns. Indicatively, the applicant's family income during the fiscal years 2010 and 2011 amounted to 61,863.39 euros and 59,542.87 euros, while during the fiscal years 2014 and 2015, they amounted to 25,455.78 euros and 25,539.48 euros. Now, the applicant, due to the absence of any personal income and the reduction in his family income compared to the past, is unable to meet his loan obligations.
In total, the applicant's debts to his defendant creditors amount to the amount of 686,113.50 euros.
The applicant, mainly due to the reduction in his family income in recent years, his zero individual income, but also the increase in the cost of living and over-taxation, has become permanently and persistently unable to pay his above debts, and this inability is not due to fraud.
FOR THESE REASONS
He judges. contradiction of the parties.
Accepts the application.
Adjusts the applicant's debts with monthly payments to his creditors for a period of five years, which will be made on the first five days of each month, starting from the first month after the publication of the decision, in amounts, to PIRAEUS BANK one hundred and fifty-four euros and five cents (154.05 euros) and to the NATIONAL BANK one hundred and forty-five euros and ninety-five cents (145.95 euros).
Excludes of the sale of the applicant's potential main residence, specifically a horizontal property-apartment in Marousi, Attica.
Enforces to the applicant the obligation to pay monthly for the rescue of his residence to "PIRAEUS BANK" the amount of three hundred and fifty-three euros and ninety-six cents (353.96 euros) per month and for 240 months. The payment of these monthly installments will begin within the first five days of the first month five (5) years after the publication of this decision and will be made without compounding at the average interest rate of a housing loan with the floating interest rate, which will be in force at the time of repayment, according to the statistical bulletin of the Bank of Greece adjusted with the reference interest rate of the Main Refinancing Operations of the European Central Bank.
Judged, was decided and published in an extraordinary and public meeting in his audience, in Lavrio.
THE SECRETARY OF THE JUSTICE
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