ATHENS JUSTICE COURT
Formed by the Justice of the Peace M. M., appointed by the President of the Three-Member Administrative Council of the Athens Justice of the Peace Court in the presence of the Secretary E. K.
He/She sat down. publicly in its hearing on September 30, 2016 to try the following case between the parties:
The applicant: Postal Code of X., resident of Zografou, Attica, who was represented by her attorney-in-fact Saint Zervea.
Of the creditors participating in the trial:"PIRAEUS BANK S.A.", "NATIONAL BANK OF GREECE S.A.", "EUROBANK ERGASIAS BANK S.A.".
The applicant, with her application dated 28-12-2015, for a voluntary jurisdiction procedure, filed with the Secretariat of this Court under filing number __, for the discussion of which the hearing referred to at the beginning of this decision was set, requested what is mentioned therein.
The discussion followed, as stated in the relevant minutes, and the Court, after:
STUDY THE FILE
THOUGHT IN ACCORDANCE WITH THE LAW
With the application under consideration, the applicant, citing a lack of bankruptcy capacity and a permanent inability to pay her overdue financial debts, requests their settlement by the court, with the exception of the liquidation of the property she uses as her main residence, according to the plan proposed by her.
The creditors of the applicant participating in the trial raised the objections of her fraudulent entry into insolvency and abusive exercise of her right, as specifically developed orally in the hearing and in the written proposals they submitted. These objections are admissible (s.262, 263 of the Code of Civil Procedure) and are legal, based on the provisions of article 1 of law 3869/2010 and must be further investigated whether they are also substantively well-founded.
From the assessment of the sworn examination of the witness in the hearing, which is included in the minutes of the public session of this Court, with the same number as this decision, of the documents legally and timely submitted by the parties, of what was presented orally and in writing by their attorneys-at-law and of the lessons of common experience, which are taken into account ex officio, the Court has established the following facts that have a material influence on the outcome of the trial: The applicant was born in 1948, is married, has two adult children who are financially independent and resides with her husband in an apartment co-owned by her, in an undivided 50% share, which is located in Athens. The applicant is a pensioner and her net monthly pensionable earnings amount to 982.94 euros from a) a main State pension of 569.55 euros, b) a supplementary pension from EETA – TAN of 295.71 euros and c) a supplementary pension from TEADY of 117.68 euros. The applicant's husband, D. K., is a pensioner and his net monthly pensionable earnings amount to 1,239.88 euros. Therefore, the applicant's total monthly income amounts to 2,222.82 euros. From the presentation of the tax returns and income tax returns submitted by the applicant, it appears that her annual family income during the years 2004 to 2010 was consistently high, amounting to approximately 43,278.56 euros and 13,500.00 euros for the individual. In the following years, namely the six years that followed (2010-2015), the applicant's annual income showed a decreasing trend.
From the asset declaration (E9) for the years 2016 and 2016, the single property tax declaration ENFIA for the year 2016 and the property purchase and sale contract No. 2707/1986, it appears that the applicant is the beneficiary of a real right of full ownership at a percentage of 50% indivisible of a fifth-floor apartment, built in 1986, with a main area of 127 sq.m. as well as an underground parking space, with a main area of 20 sq.m., built in 1986, which are located in the Municipality of Zografou, Attica.
Her overdue debts, as shown by the relevant certificates granted by the defendants to the applicant, amount to the amount of 484.367,67 €.
The bulk of the applicant's debt stems from a housing loan that she took out jointly with her husband from the first defendant in 2004 and 2005 for the repair of her main residence. The applicant has been consistent in repaying her debts for a number of years, from the time the above loans were taken out (2004) until 2011. The applicant's inability to adequately meet the payment of the monthly installments was already evident in 2011 and 2012, when her annual income first decreased, and became permanent and general in 2014, when the increase in her and her husband's living costs resulted in a lack of liquidity for the payment of her loan obligations.
It follows from the above that neither the over-indebtedness nor the applicant's inability to meet her obligations today are due to fraud, while her attempt to settle her debts does not contain any element of abusive conduct. The estimated minimum monthly living costs of the applicant and her husband currently amount to €1,250.00 per month, according to the reasonable assessment of the Court in accordance with the lessons of common experience.
Given that the applicant's assets, other than her main residence, are not sufficient, the court must arrange for monthly payments from her income for a period of three years to partially repay her debts to the defendants.
Furthermore, with regard to the applicant's property of which she is the beneficial owner in rem by percentage only, based on common experience and logic and taking into account current market conditions, due to the small commercial value of the applicant's ideal share, it does not appear that its sale can generate purchasing interest, and its liquidation is not expected to bring financial consideration commensurate with the debt.
FOR THESE REASONS
It judges the conflict between the parties.
The application is partially accepted.
It sets the applicant's monthly payments for a period of three years at the amount of 486.41 euros, which will be distributed symmetrically among her creditors and will be paid within the first three days of each month, starting from the first month after the publication of the decision.
Excludes from the sale the applicant's main residence, namely a fifth-floor apartment, built in 1986, with a main area of 127 sq m and auxiliary areas of 20 sq m, as well as an underground parking space, with a main area of 20 sq m, built in 1986, which are located in the Municipality of Zografou, Attica, at the intersection of __ streets, of which the applicant is the real beneficiary of a right of full ownership of 50% in undivided shares.
It orders the applicant to pay, for the rescue of her upper residence, the amount of 45,469.00 euros, which will be paid to her creditors as referred to in the reasoning hereof in 180 monthly installments of 253.00 euros each. The payment of these installments will be made within the first three days of each month and is set to begin on the 1st day of the first month after the lapse of three (3) years from the publication of this decision, and will be made without compound interest at the average interest rate of a mortgage loan with the floating interest rate that will apply 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.
It was judged, decided and published in an extraordinary public meeting, in Athens in its audience, on 18/10/2016.
THE SECRETARY OF THE JUSTICE
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