{"id":944,"date":"2017-08-28T17:44:30","date_gmt":"2017-08-28T17:44:30","guid":{"rendered":"http:\/\/zerveaslaw.gr\/?page_id=944"},"modified":"2024-07-19T06:36:29","modified_gmt":"2024-07-19T06:36:29","slug":"23452017-2","status":"publish","type":"page","link":"https:\/\/zerveaslaw.gr\/en\/services\/indebted_households\/judgments\/23452017-2\/","title":{"rendered":"DECISION NUMBER 2345\/2017"},"content":{"rendered":"

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

Voluntary Jurisdiction Procedure<\/strong><\/p>\n

Debt Settlement of Overindebted Individuals<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

Formed<\/strong> by the Magistrate M. \u2013 I. M., appointed by the President of the Three-Member Administrative Council of the Athens Magistrate's Court in the presence of the Secretary E. P.<\/p>\n

He\/She sat down.<\/strong> publicly in its hearing on April 7, 2017 to try the following case between the parties:<\/p>\n

The applicant: M. K. of S., resident of Galatsi, Attica, who appeared with her attorney-at-law Evangelos Zerveas.<\/strong><\/p>\n

The creditors participating in the trial: 1. A Societe Anonyme with the name "ALPHABANK SA" based in Athens and legally represented, which was represented by the power of attorney of the lawyer M.-A. P. -2. A Societe Anonyme with the name "EUROBANKERGASIAS BANK SA" and the distinctive title "EUROBANKERGASIAS" based in Athens and legally represented, which was represented by the power of attorney of the lawyer Z. A. -3. A Societe Anonyme with the name "PIRAEUS BANK SA" based in Athens and legally represented, which was not represented in Court -4. A credit-providing company under the name \u201cHELLENICPOSTCREDIT\u201d based in Paiania and legally represented, which was represented by its attorney-at-law E. T. -5. Greek State, legally represented by the Minister of Economy and Finance, in this case by the head of the Tax Office of the 13th District of Athens, who was represented by the Judicial Power of Attorney of the National Court of Greece X. T. -5. Legal Entity of Public Law with the name \u201cUNIFORMED SOCIAL SECURITY INSTITUTION (EFKA)\u201d as the universal successor of the Legal Entity of Public Law with the name \u201cINDEPENDENT PROFESSIONALS INSURANCE ORGANIZATION (OAEE)\u201d based in Athens and legally represented, which was represented by the power of attorney of the lawyer E.K. B. -6. Legal Entity of Public Law with the name \u201cUNIFORMED SOCIAL SECURITY INSTITUTION (EFKA)\u201d, as the universal successor of the Legal Entity of Public Law with the name \u201cUnified Insurance Fund for Mass Media Personnel (ETAP-MME)\u201d based in Athens and legally represented, which was represented by the proxy of S. S. and -7. Hellenic Telecommunications Company with the name \u201cVODAFON- PANAFONANONYMI HELLENIC TELECOMMUNICATIONS COMPANY\u201d which is based in Chalandri, Attica and legally represented, which was not represented in Court<\/p>\n

Notified to:<\/strong> A. F. of A., resident of Athens, who did not appear in Court.<\/p>\n

The applicant, with her application dated 20-12-2016, for a voluntary jurisdiction procedure, filed with the Secretariat of this Court under filing number ..\/21-12-2016, for the discussion of which a hearing was set as referred to at the beginning of this decision, requested what is mentioned therein.<\/p>\n

The discussion followed, as stated in the relevant minutes, and the Court, after:<\/p>\n

 <\/p>\n

STUDY THE FILE<\/strong><\/p>\n

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

 <\/p>\n

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.<\/p>\n

With this content and request, the application under consideration, as admissibly supplemented and amended pursuant to articles 236 and 745 of the Code of Civil Procedure by an oral statement of the applicant's attorney and with her written proposals, is brought for discussion before this court (article 3 of Law 3869\/2010). Furthermore, the application is sufficiently defined, rejecting the claims to the contrary of the creditors present, since it contains the necessary elements for the verification of its legal and substantive validity pursuant to article 1 of Law 3869\/2010. It is also lawful, based on the provisions of articles 1, 4, 5, 6, par. 3, 8, 9 and 11 of the same aforementioned law, except for the request to include in the regulation the applicant's debts to the fifth, sixth and a seventh of its creditors participating in the trial (Hellenic State Tax Office 13 Athens and EFKA) which must be rejected for the following reasons.<\/p>\n

According to art. 1 par. 2 sub.b of Law 3869\/2010 as in force after its replacement with par. 1 of article 1 of subpar. A.4 of article 2 of Law 4336\/2015 (Government Gazette A 94\/14-8-2015), and covers, in accordance with paragraph 5 of article 2 of subparagraph A.4 of article 2 of the same law, applications submitted after its entry into force, it is now provided that "The scope of application of this law also includes: a) confirmed debts to the Tax Administration in accordance with the Tax Procedure Code (TPC), the Public Revenue Collection Code (PRC) and the Customs Code..., and c) insurance debts to Social Security Organizations, as they have been formed based on surcharges and late payment interest. In this case, with the legislative regulation of article 1 of subparagraph A.4 of article 2 of Law 4336\/2015, which incorporated into Law 3869\/2010 the social security contributions to the OKA as well as the confirmed debts to the tax administration, as they have been formed based on the surcharges and interest on late payment, provides the opportunity for a category of insured persons of social security institutions, in particular those whose debts to the said organizations (from social security contributions) coincide with debts to private creditors, as well as for a category of taxpayers, in particular those whose debts to the tax administration from income or real estate taxation (debts to the Tax Office) coincide with debts to private creditors, to request and even achieve the complete cancellation of the social security contributions owed by them and the tax burdens owed by them, such as the the latter were determined objectively on the basis of their income and their tax-paying capacity. Furthermore, with the serious blow caused by the reduction by 53% (amounting to 18.7 billion euros) of the nominal value of the bonds in which the insurance funds had invested, which was completed with the 2nd phase of the PSI with a further reduction which amounted to 1.2 billion euros (see document no. 13.6.8.12\/\u0392\/1168 of the General Directorate of Economic Policy, Directorate of Credit and Public Affairs of the Ministry of Finance to which is attached the document no. 222\/2.8.2012 of the Human Resources and Organization Department of the Bank of Greece), the reserves of the O.K.A. have been significantly reduced, while the reduction in income and the increase of their deficits that occurred in recent years due to the increase in unemployment rates, undeclared work, etc., the above provision of art. 1 par. 2 sub-paragraph b, point c of Law 3869\/2010 is added, the implementation of which means that new significant deficits will occur that will lead to a further contraction of their reserves. Consequently, with the inclusion of insurance debts to Social Security Organizations in art. 1 par. 2 sub-paragraph b of Law 3869\/2010, the state guarantee enshrined in art. 22 par. 5 of the Constitution is directly violated and concerns the institution of social security which is ensured by the operation of viable insurance organizations and obliges the legislator to proceed to special regulations always guided by the protection of the insurance capital and the promotion of of social security itself. Furthermore, by including tax debts in the provisions of Law 3869\/2010, the taxpayer-debtor is exempted from them, given that the regulation according to the above law does not concern the entire debt to the Tax Office in several installments and until its full payment, but part of it (debt) in partial installments and ultimately exemption from the remainder of it, and this is because the criteria for the regulation of debts, according to Law 3869\/2010, are the existing income-financial and property situation of the applicant. However, the above criteria have already been assessed when determining the tax-paying capacity of the applicant for the regulation of tax debts, and his new exemption according to Law 3869\/2010 and the eventual partial or even total cancellation of tax debts debts, leads to unequal treatment of taxpayers with similar tax-paying capacity. On the contrary, the case of the arrangement of debts to credit institutions due to the inability to pay the monthly installment, as determined at the time of taking out the loan and based on the applicant's income at that time, is a constitutionally permissible discharge of the debtor, because it constitutes a voluntary assumption of a contractual obligation, the non-compliance of which affects exclusively the counterparty of the over-indebted debtor and not any third party who is subject, due to income, to the same tax treatment. Therefore, the aforementioned provision by which the beneficial provisions of Law 3869\/2010 now include confirmed debts to the Tax Administration in accordance with the Tax Procedure Code (TPC), the Public Revenue Collection Code (KEDE) and the Customs Code, as they have been formulated based on the surcharges and late payment interest that burden them, is considered unconstitutional as it contradicts the principle of tax equality and tax justice of the provisions of article 4 par. 5 of the Constitution, since it introduces dissimilar treatment of taxpayers who are under similar economic conditions. Furthermore, however, it also contradicts the public interest (which constitutes sufficient reason for the issuance of laws that are not entirely consistent with the constitution, as the Council of State ruled during the hearing of legal remedies against the Memorandum by issuing its 668\/2012 decision), since in this way there is an obvious loss of public revenue, absolutely necessary for the execution of the purposes of the State and, ultimately, All citizens are affected, who for various objective or subjective reasons cannot be subject to the provisions of Law 3869\/2010.<\/p>\n

For the above reasons, this provision is invalid because it is considered unconstitutional by this Court, without this meaning that the principle of separation of functions, established by articles 1, 26, 73 et seq. and 87 \/ et seq. of the Constitution, is thus violated (All AP 3\/2013, 46\/2005, 9\/2004).<\/p>\n

From the assessment of the applicant's in-person testimony, which is included in the minutes of the public session of this Court under 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 the attorneys-at-law of the parties and of the lessons of common experience, which are taken into account ex officio, the Court has found the following facts to have a material influence on the outcome of the trial: The applicant was born in 1960, has been divorced since 2010 and has been separated since 2003, has an adult child, aged 30, and resides with her child in Athens, in an apartment co-owned by her with her ex-husband. The above has been unemployed since June 2016, registered in the OAED unemployment register and receives a monthly unemployment benefit of 360 euros. The above benefit constitutes the applicant's only source of income since her son, I. P., is unable to work due to the health problem he is facing. The applicant in the past, specifically since 1998, maintained a sole proprietorship retailing furniture, lighting and other household items, the operations of which were discontinued in 2009, as is evident from the submitted certificate of cessation of operations from the 13th Athens Tax Office. Furthermore, it was demonstrated that until the above time of cessation of operations of her business, the applicant was servicing the bulk of the debt to her private creditors listed below. In particular, in 2008 the applicant made irregular payments, i.e. overdue and remaining installments, to some of its creditors, which represent only 20% of the total debt, while the rest were serviced normally. Therefore, the applicant ceased its payments to all of its private creditors, subsequent to the cessation of its business operations, and at the time of filing the legal application it did not have bankruptcy capacity or commercial capacity and therefore its debts can be regulated under Law 3869\/2010. The applicant remained unemployed from 2009, the year her business ceased operations, until June 2014, when she was hired by the company \u201cNIKOLAOS GALATSIS & SIA EE\u201d where she worked part-time for two years, specifically until June 2016. Today, the applicant and her child are essentially supported by the financial assistance they receive from friends and relatives. From the presentation of the tax returns and income tax returns submitted by the applicant, it appears that her income amounted to 22,493.98 euros in 2003 (7,360.98 euros for the individual and 15,132.03 euros for the spouse), 22,807 euros in 2004, 8,657.37 euros in 2006, 18,662.65 euros in 2007, zero during the years 2009 to 2012, while during the years 2014 and 2015 it amounted to 2,282.34 euros and 4,066.43 euros respectively.<\/p>\n

From the declaration of real estate data (E9) in combination with the declaration of the single real estate property tax (EN.FIA) for the year 2016, it appears that the applicant is the beneficiary of a real right of full ownership of 50% of a first floor apartment, with a main area of 68 sq.m. and auxiliary areas of 15 sq.m., built in 2001, which is located in Galatsi, Attica, on the street ... The objective value of the percentage of the applicant's right over the above property, the exemption from liquidation of which is requested because it is an immovable asset that she uses as her main residence, amounts to \u20ac27,676.69, while its commercial value, based on its age, location, year of construction and prevailing market conditions, is estimated at \u20ac43,000. It was further demonstrated that the applicant does not have any other assets.<\/p>\n

The applicant's overdue debts to private creditors total the amount of 387.887,71 <\/strong>\u20ac and specifically it owes: 1) To the banking company with the name "ALFA BANK SA" \u20ac318,335.93 from 1) the no. 464886 loan agreement 'All in 1' (\u20ac68,421), 2) the no. 989001826590302 credit agreement with an open mutual account (\u20ac67,709.50), 2) the no. 4532120040545001 credit card agreement (\u20ac518.19), 3) the no. 4532120040545001 credit card agreement (\u20ac518.19), 4) the no. 375537121752008 credit card agreement (301.88 \u20ac), 5) the'<\/sup>no. 36711886220003 credit card agreement (\u20ac22,592.11), 6) the'<\/sup>No. 378727 personal loan agreement (\u20ac2,191.44), 7) No. 2398646 consumer loan agreement (\u20ac20,7715.64), 8) No. 2051530 consumer loan agreement (\u20ac13,838.69), 9) No. 2048371 consumer loan agreement (\u20ac15,808.49), 10) No. 35200231000084 credit card agreement (\u20ac4.99) and 11) No. 352002030001065 mortgage loan agreement (\u20ac106,234.08). The above claims of the defendant under items 1.2 and 1.11 are secured in rem by a mortgage on the immovable property used by the applicant as a primary residence. 2) To the banking company with the name \u201cEUROBANKERGASIAS BANK SA\u201d \u20ac43,386.85, a claim for the satisfaction of which the defendant has proceeded to the forced seizure of the above immovable property of the applicant 3) To the banking company with the name \u201cPIRAEUS BANK SA\u201d \u20ac13,397.77 from 1) the credit card agreement no. 5185160078880000 (\u20ac10,995.52) and 2) the consumer loan agreement no. 755854\/107 (\u20ac2,402.25) 4) To the credit company with the name \u201cHELLENICPOSTCREDIT\u201d \u20ac9,617.53 from no. 4232950003531017 credit card agreement and 5) To the limited liability company with the name \u201cVODAFON PANAFON HELLENIC TELECOMMUNICATIONS COMPANY\u201d \u20ac3,149.52 from unpaid bills. The above claim under item 5 of the defendant is secured in real estate by a mortgage on the above immovable property of the applicant. If you are in the market, our platform is your best choice! The largest shopping center!<\/p>\n

The bulk of the applicant's debt stems from a housing loan that she received from the first defendant in 2001 for the purchase of her main residence and the general coverage of her family's housing needs, while part of this (debt) stems from consumer banking products that the applicant received in 2005 and 2007 to cover family needs. During the aforementioned years of borrowing (2001, 2005, 2007), the applicant's income, derived exclusively from the profits of her business, was quite satisfactory, amounting to approximately 1,900 euros per month and was sufficient for the payment of the current installments of the aforementioned loans. It is noted that from 2003 onwards, the applicant's living needs were covered exclusively by her personal income, since at that time her ex-husband left the previously shared marital home and since then ceased to contribute to the family's living expenses. The termination of the marital relationship and the non-contribution of the applicant's ex-husband resulted in her being burdened with additional living expenses, which until then were partly covered by his income, which had always been stable, given that the latter had a stable job in the State with satisfactory remuneration. The applicant, however, complied with the service of the debts despite the reduction in her family income, in 2003, and its limitation to what she herself earned from her commercial activity. With these financial and income data, the applicant was consistent in paying her loan obligations from the time they were taken out until 2016. The applicant's inability to properly meet the payment of the timely installments was already evident from 2009, when her income was reduced to zero due to the cessation of her business operations, which she did due to its loss-making course and in order to avoid accumulating a large number of overdue debts that would not allow her to stop operations. The applicant continued to make payments to her creditors even after the cessation of her business operations, using up financial savings from previous years and arranging the debt up to that time, concentrating it in a loan with more favorable repayment terms. However, the applicant's five-year unemployment, from 2009 to 2014, and the subsequent finding of part-time employment, with earnings much lower than those corresponding to the years of borrowing and servicing the debt, made the applicant's inability to pay the above loans permanent and general in 2016. The above unforeseen events were combined with the increase in her cost of living, given the overpricing of essential goods and the imposition of additional taxation, resulting in the complete reversal of the applicant's financial data and budget in terms of paying her loan obligations. From the aforementioned income situation of the applicant and from what she herself testified during the hearing, it emerged that the reduction in her income was the main reason that led her to permanent and general inability to pay in 2016, while her attempt to settle her debts does not contain any element of abusive behavior, since the relationship between the current available liquidity and the amount of her basic living expenses is already negative. According to what has been mentioned, she is in exceptional circumstances and specifically insufficiency of income, since her estimated minimum monthly living costs currently amount to 1,500 euros per month to meet her basic needs, for food, heating, electricity, water, inflexible expenses to the Tax Office, medical expenses, etc., in order to ensure a decent standard of living for her and her child, and given that both she and her adult child suffer from chronic health problems for the treatment of which constant medical monitoring and special medication are required, which are not covered by the insurance fund. Therefore, any consideration of determining monthly payments is not feasible within the framework of the regulation of art. 8 par. 5 of Law 3869\/2010, while there is no reason to reexamine the case, since it was assessed that her income situation will not change in the future.<\/p>\n

Finally, in accordance with the provision of Article 9, paragraph 2 of Law 3869\/2010, in order to save the applicant's main residence, specifically the percentage (50%) of her right, payments should be made until an amount is reached, which cannot be lower than what her creditors would receive in the event of forced execution. Regarding the legalization of the applicant who submitted the relevant request, all the legal conditions for the inclusion of her main residence in the rescue regime are met since: a) her available monthly income of 360 euros does not exceed her reasonable living expenses, b) the objective value of the percentage of the applicant's right (see above) does not exceed the protection limit set by law, and c) The applicant is a cooperative borrower, since she responded to her creditors when and whenever they called her. Within the framework of this arrangement, monthly payments of a total amount of 40,000 should be set, and its repayment period should be set at twenty (20) years. The above amount of consideration (40,000 euros) would be achieved by the forced sale of the applicant's property, given that the commercial value of the percentage of her right amounts to 43,000 euros, an amount at which it is estimated, due to market conditions, that it will be sold in the context of forced execution (art. 993 par. 2 sub. c'), and the execution costs to 3,000 euros. The amount that the applicant will pay in the context of this arrangement will amount to 166.66 euros per month, and the monthly installments will begin to be paid two (2) years after the publication of this decision, since it is considered that she should be granted a grace period so that she can prepare for the above arrangement. The distribution of the monthly installments to the applicant's creditors will be made in accordance with the provisions of articles 974 of the Code of Civil Procedure, and after the exhaustion of the amount with which the amount set for the rescue of her main residence is completed, the applicant is exempted from the remainder of her debts, as no other obligation can be imposed on her by law.<\/p>\n

In light of the above, the application under consideration must be rejected as to the fifth, sixth and seventh of the defendants (Greek State-Tax Office IG Athens and EFKA) because the inclusion of these claims in Law 3869\/2010 is deemed unconstitutional, as to the other creditors, to be partially accepted as well-founded in substance and to regulate the applicant's debts, with the exception of the sale of her main residence, in accordance with what is specifically defined in the operative part of this present document. The discharge from her debts towards private creditors, which are included in the list contained in her application, will occur by law (art. 11 par. 1 of Law 3 869\/2010) subject to the regular execution of her obligations. Legal costs are not awarded pursuant to article 8, paragraph 6, of Law 3869\/2010.<\/p>\n

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FOR THESE REASONS<\/strong><\/p>\n