The trend of granting loans in the years before the financial crisis led many households and professionals - companies to borrow. In the process, many of them were unable to be consistent in repaying the monthly installments, while others, although they made constant efforts to meet their basic needs, saw the loan decrease only slightly, realizing that its repayment would ultimately be a process that would last for most of their lives.
On the other hand, when a debt is overdue, Banks attempt to assert their claims through the issuance of a payment order, which is in fact the initial stage of enforcement against the debtor. They also have the option of filing a lawsuit, a process they do not prefer, however, as it is more complex and requires more time.
In previous years, with auctions frozen, Banks issued payment orders against debtors - borrowers, but most of the time without proceeding with the execution against their assets, that is, the seizure and auction.
Now, companies managing claims from loans and credits, the so-called funds, are observed, given the opening of the auctions, to issue or notify as successors to the claims of the Banks, payment orders against the debtors and to immediately proceed with the execution process with an auction program even of the main and only residence of the debtor - borrower.
For this reason, the debtor's defense against the payment order takes on decisive importance in order to suspend the auction of his residence or, in any case, to significantly slow it down by not allowing the payment order to become final, which entails the failure to file an objection against it.
The payment order is issued upon request of the lender, without the debtor being aware of the proceedings that have been initiated against him. He is only informed when it is served on him by a bailiff. However, due to the speed of this procedure from which the debtor is absent and therefore cannot develop his objections and claims against the issuance of the payment order, the opposition procedure has been established, which is essentially the only weapon for the defense of the debtor - borrower. Precisely because the payment order is a decision issued without the presence of the debtor - borrower, the law has provided for strict conditions for its issuance, which are often not respected by the Banks and funds, with the result that the payment order suffers and the debtor can cancel it through the opposition.
Indicatively, some of the most basic reasons that are often encountered in practice and may lead to the success of the objection and the cancellation of the payment order as well as the check for payment that follows the payment order and is signed by the attorney-in-fact of the Bank or the fund are listed below:
1. Indefiniteness of the application for the issuance of a payment order or of the check for payment
2. Failure by the Bank to provide the documents necessary for the issuance of a payment order (loan - credit agreements, account statements, complaints, documents proving the transfer of the claim to the fund, etc.) - lack of a document proving
3. Non-use by the Bank for the issuance of a payment order of an extract from its commercial books
4. Inclusion in the claim of amounts from illegal interest – Illegal determination of interest rate
5. Inclusion in the claim of amounts from illegal tax interest (Law 2601/98)
6. Unfair burden on the debtor - borrower with compound interest contributions Law 128/75
7. Illegal loan costs and commissions in the loan agreement
8. Dispute over the validity of the contract and the amount of the claim
9. Lack of legitimacy of the Bank or the fund, as well as of the alleged principal, for the issuance of a payment order or the delivery of the check for payment.
10. Pending application of article 4 par. 1 of Law 3869/2010 (Overindebted Households) or inclusion of the debtor-borrower in another bankruptcy law
11. Swiss franc
12. Unfairness of contract terms (Law 2251/1994, 281 of the Civil Code, etc.)
13. The payment order or the check for payment was attempted contrary to fair trading practices and good faith (abuse of rights)
14. The Bank or the fund does not prove its exact and settled claim, as it is not possible to calculate the amortizations, interest (principal and default), the applicable exchange rates, other expenses - contributions, etc.
15. Non-cumulative contribution of the positive conditions of article 623 of the Criminal Procedure Code and the negative conditions of article 614 of the Criminal Procedure Code
16. Late service of the payment order
17. Limitation of interest or part thereof
18. Incorrect or inflated calculation of the amounts indicated on the check for payment
Listed below are some of the decisions of our office that annulled a payment order and a forced seizure report and are of jurisprudential interest.
THE MEMBER NO. 250/2023 MON. PROT. SPARTA
"...With the fifth ground of the present opposition, in its second part, which challenges the seizure, the opponent states that the contested report of compulsory seizure is voidable, due to the vagueness of the limitation of the amount for which the seizure was imposed, as although with the contested check for payment, he was ordered to pay the defendant the total amount of 141,705.64, the latter imposed compulsory seizure only for the amount of 50,000.00 euros, without however specifying what the limitation concerns, so that it becomes clear for which funds the execution is carried out. With this content, the contested ground of objection is legal, based on the provisions of articles 904, 915 and 916 of the Code of Civil Procedure... Consequently, in accordance with what was mentioned in the immediately preceding legal consideration, the contested report of compulsory seizure must be annulled...".
THE MINISTRY OF ADMINISTRATION NO. A 3072/2023 ADMINISTRATIVE PRIMARY OF PIRAEUS (MON.)
"...Because, with these facts and in accordance with the provisions set forth and interpreted above, the Court first of all takes into account that out of all the amounts confirmed in the name of ... for the payment of those belonging, as debts, to the liabilities of his inheritance, the objector, the surviving spouse of the said debtor, bears no responsibility, in view of the timely and lawful renunciation of his inheritance... Therefore, the Court finds, accepting the relevant allegations of the objector, that the contested enforcement measure was not taken lawfully... Because, as a result of the above, the objection in question must be accepted, the contested report of compulsory seizure must be annulled...".
THE MINISTRY NO. 21/2024 MON. PROT. GYTHEIOU
"... In the present case, the opponent, with the first (I.) part of the first (1st) ground of appeal and on a correct assessment of its content, claims that the defendant, when submitting its application for the issuance of the contested payment order, did not present the documents proving its legal standing... However, from the above documents, it does not appear that the disputed claim, in satisfaction of which the defendant made an application for the issuance of the contested payment order, was assigned to be managed by it (the defendant)... From the above, it is clearly concluded that the defendant did not include in the notified documents in support of its legal standing the necessary legal documents, with the result that the assignment of the management of the claim to it at the relevant time of the issuance of the contested payment order does not arise. Therefore, the reason for opposition considered must be accepted and as a matter of substance well-founded. Subsequently, the opposition must be accepted and the payment order of the Judge of the Single-Member Court of First Instance of Gytheio must be annulled with number …/2023…”.
Our law firm undertakes to inform you about your rights and the actions you can take when you are faced with a payment order that constitutes the beginning of the enforcement procedure against you.
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