Decision ΕιρΑθ 619/Φ1477/2012

Decision Number

619/Φ1477/2012

 

THE ATHENS JUSTICE COURT

       It was formed by the Justice of the Peace E. Z., who was appointed by the President of the Three-Member Administrative Council of the Athens Justice of the Peace, and by the Secretary D. T.

It sat in public in its audience in Athens on October 30, 2012 to try the following case:

The applicant: E. – A. N. of D., cohabitant of K. – A. N., resident of Paleo Faliro, Attica, who was represented by her attorney-in-fact Saint Zervea.

The applicant, with her application for Voluntary Jurisdiction (Law 3869/2010) dated 15-9-2011, filed with the Secretariat of this Court under filing number __/24-10-2011, requested the following.

The hearing referred to at the beginning of this document was set for the discussion of this application.

During the presentation of the case, the applicant's creditors mentioned in the application stated that they are present as follows:

1. The Banking Company with the name "NATIONAL BANK OF GREECE S.A.", headquartered in Athens, legally represented, was represented by its attorney D. K.
2. The Banking Company with the name "POST SAVINGS BANK OF GREECE SA", legally represented, based in Athens, was represented by its attorney-at-law T. A.
3. The Banking Company with the name "ALPHA BANK S.A.", and the distinctive title "ALPHA BANK S.A.", headquartered in Athens, legally represented, was represented by its attorney M. M.
4. The Banking Company with the name "EUROBANKERGASIAS BANK S.A.", as the Bank was renamed "EFG EUROBANK ERGASIAS S.A.", headquartered in Athens, legally represented, was represented by its attorney-at-law I. Ch.

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

He studied the case file.

He thought according to the Law.

The applicant in the present application, citing lack of bankruptcy capacity and permanent inability to pay her overdue financial debts, requests the settlement of her debts, excluding her main residence, in accordance with the settlement plan proposed by her with the aim of relieving her of them.

With the above content, the application is competently brought for discussion in this court (article 3 of Law 3869/2010) during the procedure of voluntary jurisdiction of articles 741 to 781 of the Code of Civil Procedure (article 3 of Law 3869/2010), provided that ...

From the sworn statement of the applicant's witness examined in the court hearing during the hearing of the application and contained in the minutes of the trial as well as the documents legally invoked and presented by the parties, the following were proven in the opinion of the court: The applicant, 54 years old, is a pensioner of the IKA. since 20-6-2002 when she was awarded by decision of the Director of the IKA. a full old-age pension, amounting to 1,068.86 euros per month. She is married to K. - A. N., who is a pensioner of the IKA. from 24-1-2011, when he was awarded a full old-age pension of 1,661.45 euros per month, which after a reduction suffered, amounts to 1,263.08 euros per month in the current year. The above amount is contributed in full by the above to cover the living needs of their family. In particular, the applicant from her marriage to the above has acquired three children, __, 29 years old, who works, __, 25 years old, a student at the Gymnasium Academy and __, 13 years old, a high school student. The applicant and her family reside in a rented apartment on __ street in Paleo Faliro, measuring 150 sq.m., in which the applicant's mother also lived. who recently passed away. The rent for the above apartment is covered by the applicant and her husband from the rent they receive from renting an apartment, co-owned by them, measuring 100.33 sq.m., located on the third floor of an apartment building on __ street in the area of Amfithea, Attica, which, when the applicant's mother lived, did not cover the housing needs of the applicant's family due to its smaller area. The applicant suffers from metastatic melanoma with brain and lung localizations, is under regular check-ups and medical monitoring and was and is undergoing chemotherapy (see the information note of 31-3-2011 by oncologist H. A. and his medical certificate of 4-10-2012). The applicant's creditors to whom it had assumed the following debts in a period prior to the year from the filing of the application, which are considered by law to be overdue upon notification of the application and of these, the unsecured ones cease to generate interest upon notification of the application, while the secured ones continue to bear interest at the interest rate of the current debt until the publication of this (article 6 § 3 of Law 3869/2010) are the following: 1) "NATIONAL BANK OF GREECE S.A." a) debt of 322,901.48 euros upon notification of the application (4-11-2011) from the mortgage loan agreement numbered 4208358220. This claim of the above creditor of the applicant is secured in rem by a mortgage of the first series on the following properties co-owned by the applicant and her husband: a) in the C-1 apartment on the third floor of 100.33 sq.m., b) the warehouse no. 5 in the basement and c) the P-4 parking space in the basement of an apartment building located at 9 Kalypsous Street in the Municipality of Paleo Faliro for the amount of 544,700 Swiss francs b) a debt of 77,143.12 euros upon notification of the application by the mortgage loan agreement number 4203358300. This claim of the above creditor is secured in real estate by a B' series pre-notation on the above properties of the applicant and her husband for the amount of 130,000 Swiss francs c) a debt of 8,052.13 upon notification of the application by the mortgage loan agreement number 4224248697 as guarantor. This claim is secured in real estate by a D' series pre-notation on the above properties co-owned by the applicant and her husband in favor of the above creditor for the amount of 10,180.77 euros d) a debt of 18,154.67 euros upon notification of the application by the mortgage loan agreement number 4224620979. This claim of the above creditor is secured in rem by the registration of a third-order mortgage on the above properties jointly owned by the applicant and her husband for the amount of 22,745.57 euros. The applicant's total debt to the above creditor amounts to 426,251.40 euros. 2) to the Societe Anonyme Banking Company under the name "Postal Savings Bank of Greece SA", a debt of 9,791.26 euros from the consumer loan no. 1131-42-666-12 3) "ALFA BANK S.A." debt of 15,515.62 from the consumer loan number 2619688 4) “EUROBANK ERGASIAS S.A.,” as the Bank was renamed “EFG EUROBANK ERGASIAS S.A.”, debt of 5,875.12 euros from the consumer loan number 2068379868. The total debt of the applicant to the above creditors amounts to 457,433.40 euros. The applicant, since the beginning of 2011, due to the significant reduction in her family income following the retirement of her husband, whose monthly income before retirement amounted to a net amount of approximately 4,146.56 euros per month, the significant increase in her debts from the housing loans she had received from the National Bank of Greece due to their connection to the Swiss franc, due to which, despite the amounts that the applicant has paid to service these loans, her debt remains approximately at the original amount, and more generally the increase in the monthly installments required to service not only her housing loans, but also the remaining loans, which as consumer loans are burdened with high interest rates, but also the deterioration of her serious illness, due to which she has additional expenses for her medical treatment, some of which are not covered by her insurance company, she has, without malice, become permanently unable to pay her overdue financial debts, since her monthly income is not sufficient to service her loan obligations, which amount to an amount greater than her total family monthly income, after deducting the amount required to cover her living needs, which, due to her health condition and according to the lessons of common experience, amount to approximately 800 euros per month.

Following this, the objection of the second, third and fourth defendants regarding the abusive exercise of the applicant's right, as well as the objection regarding the applicant's dishonest declaration regarding her income proposed by the fourth defendant, must be rejected as essentially unfounded. The applicant's only valuable asset that can be sold and yield a significant price to satisfy her creditors is the C-1 apartment on the third floor, with an area of 100.33 sq.m., built in 1994, of an apartment building located in the Amfithea area of the Municipality of Paleo Faliro on __ street. The applicant is the owner of ½ of the undivided share of the above apartment, the remaining ½ of which belongs to her husband and which came into her ownership by virtue of the purchase and sale contract No. 6774/2006 of the Notary Public of Athens A. – P. P. for a price of 129,063.94 euros, together with the storage room No. 5 in the basement of an area of 4.80 sq.m. of the above apartment building and the P-4 car parking space on the basement floor of the above apartment building, of an area of 12.50 sq.m. The commercial value of this apartment, taking into account its age (18 years), the area in which it is located, in which there is a lot of noise due to high traffic, its objective value which amounts to 138,390 euros (see also the property value assessment of 26-10-2012 by real estate agent X. N. V.) and the rapid drop in the price of real estate due to the lack of purchasing interest as a result of the prevailing difficult economic situation, is estimated together with the above warehouse and the above parking space, which serve the needs of the above apartment and were purchased together with it as auxiliary spaces for its service and are, in essence, its appendages and are not considered marketable and suitable for sale without the above apartment, at 150,000 euros. The above apartment can serve as the main residence of the applicant and her family and its value does not exceed the tax-free amount for the acquisition of a first residence for a married taxpayer, which amounts to 250,000 euros increased by 50%, as required by law. The applicant also owns a private car FIAT RAND with registration number IKY – 9884, 1,200 cubic meters, year of first circulation 2009, value 5,500 euros, which is not considered suitable for sale due to the fact that its sale will not generate purchasing interest nor will it yield a significant price to satisfy the applicant's creditors, taking into account the costs of the sale procedure. As follows from all the above, the applicant meets the conditions for her inclusion in the regulatory scope of Law 3869/2010, and in particular that of Articles 8 § 2 and 9 § 2. Thus, the settlement of the applicant's debts will be made first of all by monthly payments directly to her above creditors from her income for four years, of which the latter will be satisfied proportionately. As regards the more specific content of this arrangement, the amount to be made available to her creditors, taking into account her monthly income, which amounts to 1,068.86 euros, the amount of approximately 800 euros per month required to cover her basic living needs, in view of the treatment she is undergoing due to her very serious health problem, must be set at the amount of 250 euros per month. In particular, …

FOR THE REASONS THEM

It judges by adversarial procedure.

The application is partially accepted.

It determines the monthly payments of the applicant to its creditors for a period of four years in the amount of two hundred and fifty (250) euros, which will be distributed proportionately among them as specifically mentioned in the reasoning within the first three days of each month, starting from the first month after the publication of this.

Excludes from the sale the applicant's main residence, namely the C-1 apartment, with an area of 100.33 sq.m., located on the third floor of an apartment building, located on __ street in the Municipality of Paleo Faliro, Attica.

It imposes on the applicant the obligation to pay, for the salvation of her residence, the total amount of sixty-three thousand seven hundred and fifty (63,750) euros in monthly payments of 312.50 euros for 204 months. Specifically, these payments will be interest-bearing, without compound interest, at the average interest rate of a fixed-rate mortgage loan that will apply at the time of repayment according to the statistical bulletin of the Bank of Greece, will begin on the first day of the first month three (3) years after the publication of this order and will be made within the first three days of each month.

It was judged, decided and published in an extraordinary, public session in his audience.

 

Athens, December 21, 2012

 

THE SECRETARY OF THE JUSTICE