By its Judgment No. 2140/2024, the Athens Single-Member Court of Appeal dismissed the appeal lodged by a Loan and Credit Claims Management Company (Servicer) and upheld the first-instance judgment, by which a Payment Order issued against our clients had been annulled. The Payment Order was set aside due to a procedural defect affecting its issuance and, more specifically, due to the absence of documentary evidence proving the assignment to the aforementioned management company of the claims arising from the credit agreement linked to a revolving current account that was at issue.
In particular, the documents submitted, and especially the summary of the servicing agreement, did not establish that the claims arising from the disputed agreement were included among the claims whose management had been assigned to the Servicer. Of particular significance is the fact that the Court of Appeal pointed out that a summary of a servicing agreement is sufficient only where it expressly states that the servicer undertakes either the management of all claims of the special purpose vehicle (SPV) or the management of all claims transferred thereto pursuant to a specific sale and transfer agreement. Furthermore, the Court emphasized that the production of an annex to the servicing agreement is not required only where the summary of the sale and transfer of claims agreement expressly refers to the assignment of servicing to the Servicer and an extract of the relevant annex containing the essential particulars of the claim is also produced. In the present case, it is noteworthy that the summary of the claims sale agreement referred to a servicing agreement bearing a different date from that of the summary that had been produced before the Court, a circumstance that was duly taken into consideration by the Court.
The crucial passages of the judgment read as follows:
“And this is so because the produced summary, published under Protocol No. …….., of the Business Claims Servicing Agreement between the aforementioned foreign company and the appellant was not accompanied by an annex identifying the claims assigned for servicing (the parties having failed to make provision therefor), nor did its text contain any reference to the assignment of the management of all claims transferred to the said special purpose vehicle pursuant to the sale and transfer of claims agreement dated 6 December 2019 or, at the very least, to the assignment of the management of all claims of which the said special purpose vehicle had become the beneficiary. The general provision contained in the servicing agreement dated 6 December 2019, according to which the servicer is entrusted with ‘All collection and general management services relating to securitised claims arising from credit facilities, loans and revolving current accounts of small and medium-sized enterprises, including, indicatively, customer information and servicing, judicial enforcement of claims, preservation, management and enforcement of security rights in rem and personal guarantees, etc.’ is not sufficient for the precise determination of the securitised claims assigned for servicing, since no specific identifying particulars thereof are stated.
Moreover, in the publication under Protocol No. …….. of the summary of the claims transfer agreement dated 6 December 2019, under the heading ‘General Description of the Business Claim’, reference is indeed made to the assignment by the transferee of the servicing of the transferred claims to ‘……..’; however, this is stated to take place solely ‘pursuant to the servicing agreement dated 5 December 2019’, which was not produced before the Judge who issued the Payment Order, whereas no reference whatsoever is made to the relevant and produced servicing agreement dated 6 December 2019 under Protocol No. …….. .
Additionally, in the private claims servicing agreement dated 6 December 2019 regulating the use of debtors’ personal data: (a) reference is made, in narrative form, to the acquisition by ‘……..’ of claims held by ‘……..’, which acquisition ‘was completed on 6 December 2019 by the relevant registration with the Athens Pledge Registry’; however, this reference stands in isolation, since the specific details of the acquisition agreement, the protocol number, volume and registration number of its publication with the Athens Pledge Registry are not specified; (b) reference is made to the servicing agreement dated 5 December 2019 between the parties, and not to the relevant servicing agreement dated 6 December 2019, which was taken into account by the Judge who issued the Payment Order; and (c) the claims whose servicing is undertaken by the servicer are not identified in any manner whatsoever, nor is it stated that the servicer undertakes the management of all transferred claims, such as would permit the inference that the claim at issue is included among them.”
