Decision of the Hellenic Court of Appeals 711/Φ1631/2013

Decision Number

711/Φ1631/2013

THE ATHENS JUSTICE COURT

It was formed by the Athens Magistrates' Court M. S., who was appointed by the President of the Three-Member Administrative Council of the Athens Magistrates' Court, and by the Secretary D. M.

It sat in public in its audience in Athens on June 12, 2013, to try the case between:

OF THE APPLICANT: D. M. of M., resident of Glyfada, __ street, who appeared in court with his attorney-in-fact Saint Zervea.

OF THE PARTICIPANTS IN THE TRIAL OF CREDITORS who became parties after their legal summons and appear as follows:

• The banking company with the name "NATIONAL BANK OF GREECE S.A.", headquartered in Athens, 86 Aiolou Street and legally represented, which appeared in court through its attorney, attorney I. Ch.
• The banking company with the name "EUROBANK ERGASIAS SA", as renamed (Government Gazette 8195/3-8-2012), headquartered in Athens, 8 Othonos Street and legally represented, which appeared in court through its attorney V. F.
• The Credit Provision Company Anonyme with the name "HELLENIC POST CREDIT A.E.P.P.", headquartered in Paiania, Attica, 40.2 km of Attiki Odos, SEA 1 Mesogeion and legally represented, which appeared in court through its attorney D. S. power of attorney and
• The Banking Company Anonyme with the name "BANK MILLENIUM BANK ANONYME ETAIRIA" headquartered in Athens, 25-29 El. Venizelou Street and legally represented, which appeared in court through its attorney G. S.

       The applicant, with the application for voluntary proceedings dated 4-4-2012, filed with the Secretariat of this Court under filing number __/17-4-2012, the hearing of which was set as mentioned at the beginning of this document, requested the matters mentioned therein.

       The Court, after the case has been read out from the relevant board and in the order in which it is recorded on it,.

STUDY THE FILE

THOUGHT IN ACCORDANCE WITH THE LAW

       From the sworn testimony of the applicant's witness, the documents that are admissible and legally presented by the parties, as well as those that are simply presented to the court, without being invoked – admissible, as follows from articles 744 and 759 paragraph 3 of the Code of Civil Procedure (see ref. B, Vathrakokoilis, op. cit., art. 759 no. 5, A.P. 174/197, Hellenic 29,129) – the following were proven, in the opinion of the court:

     The applicant, who is currently 63 years old, has been retired due to disability since 2002 (see decision of the OAEE). In the past, he was the owner of a restaurant-cafeteria which he closed due to the serious health problems he experienced (see medical documents). Today, his monthly pension amounts to €510.40. On 7-2-2013, he was re-examined by the Primary Health Committee of the KEPA, which found that his total disability rate now amounts to 78%, with the continued granting of benefits from 1-6-2012 to 31-5-2014. He has been married since 1975, the father of two adult children, who are financially independent. His wife, aged 52, works as a part-time private employee with a net monthly income of around €400 (see salary certificate 2/2012). He lives with his wife in a rented apartment on __ street in Glyfada, paying a rent of €470 per month (see rental contract). He does not own any real estate, while he owns the 50%, in undivided ownership of a 1200 cc car, manufactured in 2001. The applicant began taking out loans after 2002, when his health problems arose, and stopped paying his loan obligations in 2008 when the payment of his pension was temporarily suspended due to a review. Therefore, the applicant at the time of receiving the loans had lost his commercial status and therefore could be subject to the beneficial provisions of Law 3869/2010 since there was no cessation of payments at the time he had commercial status, thus rejecting the relevant claim raised by the 1^or of the creditors as unfounded in its essence. Finally, as regards his wife's loans in which he entered into the capacity of guarantor, in order for the guarantee to confer commercial status on the natural person, it must be done systematically and in accordance with a normal profession, while the provision of a guarantee to increase the wife's participation in meeting family needs is not sufficient, in principle, for the acquisition of the status of merchant. It was therefore proven that the applicant has become permanently unable to pay his overdue financial debts through no fault of his own, on the one hand due to overindebtedness and on the other hand due to unforeseen events that arose during his lifetime in combination with the existing economic crisis, and the claim proposed by the creditors present that the applicant has not become permanently unable to pay constitutes a denial of the historical basis of the application, which was proven as stated above.

He has fixed monthly expenses, which include those required to satisfy his individual living needs and those to cover the needs of his family, which, according to the court, amount to €800 per month, to which the wife's contribution is estimated at €400...

The applicant's total debt to the banks therefore amounts to €63,326.57.

As for the applicant's car, it is not considered appropriate to sell it as it is doubtful whether a buyer will be found, taking into account the costs of the sale process (liquidator's fee, publication costs, etc.).

Based on the above, the applicant meets the conditions for his inclusion in the regulation of Law 3869/10 and in particular that of article 8 par. 2. Consequently, the regulation of his debts will be made through monthly payments directly to the above creditors from his income for four years, which will begin from the publication of this decision (art. 8 par. 2 of Law 3869/10) ...

 

FOR THESE REASONS

JUDGES contradiction of the parties.

ACCEPTED partially the application.

REGULATES the applicant's debts with monthly payments over a four-year period to the creditor Banks and specifically: to the NATIONAL BANK of Greece the amount of €73.75 per month, to EUROBANK ERGASIAS SA the amount of €14.50 per month, to HELLENIC POST CREDIT A.E.P.P. the amount of €4.20 per month and to MILLENIUM BANK SA the amount of €7.55 per month, which will begin on the first three days of each month, starting from the first month after the publication of this decision.

JUDGED, was decided and published in Athens on 1/8/2013, in an extraordinary and public session, without the presence of the parties and their attorneys.

-THE JUSTICE OF THE PEACE- -THE SECRETARY-