{"id":939,"date":"2017-08-28T17:38:02","date_gmt":"2017-08-28T17:38:02","guid":{"rendered":"http:\/\/zerveaslaw.gr\/?page_id=939"},"modified":"2017-08-28T17:43:29","modified_gmt":"2017-08-28T17:43:29","slug":"26942017-2","status":"publish","type":"page","link":"https:\/\/zerveaslaw.gr\/en\/services\/indebted_households\/judgments\/26942017-2\/","title":{"rendered":"DECISION NUMBER 2694\/2017"},"content":{"rendered":"

THE ATHENS JUSTICE COURT<\/strong><\/p>\n

Formed<\/strong> by the Justice of the Peace K. N. appointed by the President of the Three-Member Administrative Council of the Athens Justice of the Peace and the Secretary A. I.
\nHe\/She sat down.<\/strong> publicly at its hearing on 10.05.2017, to try the case:
\nOF THE APPLICANT: N. R. of V., resident of the municipality of Glyfada, prefecture of Attica, who appeared with his attorney-in-fact Saint ZERVEA<\/strong>.
\nOF THE CREDIT PARTY: The banking company with the name "PIRAEUS BANK S.A.", headquartered in Athens and legally represented, represented by the power of attorney of M. S.
\nThe applicant, with his application dated 12.05.2015, addressed to this court, which was legally filed and recorded in the relevant book with serial number ..\/17.6.2015 and was initially determined for the hearing of 10.03.2016, when it was postponed to the hearing referred to at the beginning of this case, requests what is mentioned therein.
\nThe Court heard the parties' attorneys, who orally presented their arguments and referred to the written submissions they had submitted.<\/p>\n

\nSTUDY THE FILE<\/strong>
\n THOUGHT IN ACCORDANCE WITH THE LAW<\/strong><\/p>\n

\nWith the application under consideration, as admissibly completed and corrected, the applicant, who does not have commercial status, requests, due to his permanent inability to pay his overdue debts, to be included in the favorable arrangements of Law 3869\/2010 for the settlement and exemption from claims maintained against him by the defendant, including in his application a statement of his financial situation, a statement of the creditor and his claims, and a debt settlement plan.
\nThe application with the above content and request, competently and admissibly, is brought for discussion in this Court, in the procedure of voluntary jurisdiction. It is legal, based on the provisions of articles 1, 4, 5, 8,9 of Law 3869\/2010, as they apply after their amendment by Law 4161\/2013, which is applied in this case in accordance with the provisions of paragraph 5 of article 2 ("Transitional Provisions") of Subparagraph A.4 of Law 4336\/2015, Official Gazette 94\/14.08.2015. It must therefore be further examined as to its substantive validity.
\nFrom the proceedings in the hearing, from all the documents cited and submitted by the parties and the proceedings in general, the following were proven: The applicant lacks bankruptcy capacity, since he does not have a commercial capacity and has fallen, through no fault of his own, into a permanent inability to pay his overdue debts, due to overindebtedness. He is 84 years old, married to E. P., with two adult children aged 55 and 50 respectively, and the monthly family income amounts to a total of 1,123.40 euros, from the OAEE pension for the applicant of \u20ac669.35 and from his wife's pension of \u20ac454.05, an amount with which they meet their monthly living needs as they do not have any other source of income. As it turned out, the applicant suffers from type II diabetes mellitus with vascular complications, and receives daily treatment with antidiabetic tablets and undergoes medical monitoring and examinations. The applicant's wife suffers from heart failure with edema of the lower extremities and hypertensive heart disease with left ventricular hypertrophy, tricuspid insufficiency, mitral insufficiency and chronic atrial fibrillation. The applicant has full ownership in a percentage of 50% indivisible: a) of the apartment with elements (1-2) of a total area of 72m2, built in 2005, with b) of the parking space with elements P-9 of the uncovered area of a covered area of 10.50m2, c) of the basement storage with elements Y-6 of a surface area of 3.5m2 and d) of the exclusive use of the part of the roof of a surface area of 32.20m2 jointly belonging to apartments 1-2, A-2, B-2 and C-2, on .. street, municipality of Glyfada prefecture of Attica, which constitutes the main residence of the applicant and his wife, with a total objective value of 40,674.316, as shown by the ENFIA tax return for the year 2016 submitted on request, which does not exceed the prescribed tax-free threshold for the acquisition of a first residence increased by 50%. The court finds in this case that the protection from the sale of the applicant's main residence also includes, as a subsidiary right, the right of ownership over the warehouse, the parking space and the right of exclusive use over part of the roof. Also, with regard to the remaining real estate, the applicant has: a) a percentage of 25% of undivided full ownership of the shop with elements (K-1) on the ground floor of the apartment building on the street .. located in the municipality of Athens at the location "AMPELOKIPI", with a surface area of 86.55m2, with a loft with an area of 45m2, built in 1981, b) a percentage of 100% of full ownership of the basement warehouse with elements (Y-2) at the intersection of the streets .. located in the apartment building on municipality of Alimos, Attica, surface area 10.80m2, year of construction 1998 and c) in a percentage of 100% full ownership of the (Y-3) basement warehouse at the intersection of the streets .. located in the municipality of Alimos, prefecture of Attica, surface area 70 m2, year of construction 1998, properties which are not considered worthy of sale, a) due to their age, b) due to the crisis in the real estate sector and c) due to the fact that one of them constitutes an ideal share. For the above reasons, their offer for sale will not cause particular purchasing interest, nor will they yield a significant price for the satisfaction of the applicant's creditor, taking into account the costs of the sale procedure, and therefore they must be excluded from sale. Apart from the above, the applicant does not have any other real estate or any movable property, deposits or securities. The applicant's debts arise from the payment order number 6030\/2008 of the judge of the single-member court of first instance of Athens from one uncovered check with a total debt amount of \u20ac26,528.21 and from the payment order number 5587\/2008 of the judge of the single-member court of first instance of Athens from two uncovered checks, with a total debt amount of \u20ac49,555.946, as specifically analyzed in the application by capital, interest and costs, against which the applicant has paid the defendant in installments of \u20ac14,100 and there is a remaining debt balance of \u20ac61,984.156. According to the provision of par. 5 of article 8 of Law 3869\/2010, the occurrence of extreme or exceptional cases of debtors, who have a real inability to pay even a minimal amount, is not excluded in practice. This may occur, for example, in cases of chronic unemployment through no fault of the debtor, serious health problems of the debtor or another member of his family, insufficient income to cover basic needs or other reasons of equivalent gravity. In these cases, the rule imposed by par. 2 is not observed, but the court is allowed to determine monthly payments of a small amount or even zero, provided that a relevant request is made by the debtor, but even if a relevant request by the debtor has not yet been submitted. Therefore, based on the above, the applicant meets the conditions for his subjection to the regulation of Law 3869\/10. Monthly payments are estimated by the court that the applicant cannot pay in compliance with the articles of the Constitution: 2 par. 1 which establishes as a primary obligation of the state the respect and protection of human value, 1 par. 1 and 2 on the free development of personality, participation in the social, economic and political life of the country under conditions of absolute protection of life, honor and freedom, and 25 which establishes the principle of the social state. The applicant requests that his main residence be exempted from the sale. In this case, therefore, the percentage by law will amount to 80% of the objective value of the applicant's main residence, which is the amount of 32,539,446 for his share and not below it, because the balances of his debts are greater than 80%. The applicant must therefore pay for ten (10) years after the expiry of the three-year period, 120 monthly installments of 271.16 euros each, as specifically specified in the operative part. The applicant's release from any existing outstanding debts towards his creditor will occur in accordance with the law (article 11 \u00a7 1 of law 3869\/2010) after the regular execution of the obligations imposed on him by this decision. It should be noted in passing that the defendant's allegations that the applicant fraudulently transferred real estate rights for a gratuitous reason, while the legal causes of the defendant's claim had occurred, i.e. the checks had been validly drawn up with the completion of the legally required formal elements and delivered to the recipient, as well as their appearance for payment at the paying bank, do not have a significant impact on the outcome of the present proceedings, given that the debtor's alienation of the assets in question does not constitute by definition an act that is involved in the debtor's inability to pay, nor does it affect the procedure, as creditors retain in any case their right to resort to the provisions on fraud against creditors of the Civil Code 939 et seq. Civil Code and claim their satisfaction. In accordance with the above, the legal application must be accepted as substantially well-founded, rejecting the objections regarding the fraudulent entry of the applicant into insolvency and the abusive practice raised by the defendant, as unfounded. Legal costs are not awarded, in accordance with article 8 par. 6 of law 3869\/2010.
\nFOR THESE REASONS<\/strong>
\n\u2013 Adjudicates disputes between the parties
\n\u2013 Accepts the application.
\n\u2013 It subjects the applicant to the regulations of Law 3869\/2010.
\n\u2013 Excludes from the sale the applicant's residence referred to in the reasoning of this.
\n\u2013 Orders zero payments from the applicant to the defendant for a period of three (3) years, commencing from the publication of this decision.
\n\u2013 Excludes from the sale the applicant's main residence referred to in the grounds of this order. Sets the total amount payable by the applicant to the defendant for the rescue of his main residence at 32,539.44 euros, which will be covered by monthly payments to the defendant of 271.16 euros for a period of 120 months (10 years), which will begin to be paid on the 1st day of the first month after the three-year period has elapsed and will be made within the first ten days of each month, with interest, without compounding at a fixed interest rate, the average interest rate of a mortgage loan for a similar period of regulation, as also results from the statistical bulletin of the Bank of Greece.
\nIt was judged, decided and published in Athens on 23.05.2017, in an extraordinary and public session.<\/p>\n

THE JUSTICE'S SECRETARY<\/p>","protected":false},"excerpt":{"rendered":"

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