Recently published was the decision of the Athens Court of First Instance No. 437/2023, which annulled a report of forced seizure, under which an auction against the property of the debtors by a debt management company (Servicer) was accelerated.
In the case at issue, there was a significant deficiency in the enforcement procedure on the part of the debt management company in relation to the service of the seizure report in question on the debtor. In particular, according to Article 995 para. 1 of the CCC, a copy of the attachment report must be served on the defendant within the time limits indicated, with the specific distinctions.
The management company knowingly delivered the seizure report to a property in which our client (the enforcement debtor) never resided, and more specifically to the property where his ex-wife resided after the break-up of their marital partnership. As a result, our client was not informed in time of the seizure, but only much later and only one month before the auction took place. However, at that point in time, the deadline for filing an appeal against the seizure report, which expires 45 days after the seizure (Article 934(1) of the CCP), had already passed.
In order to defend the rights of our client, we filed an objection against the seizure report, due to the improper service, with a parallel request that the objection filed be considered timely (cumulative request for the restoration of things to their previous state - Articles 152 et seq. The Court, assessing the case correctly, granted the request for restitution and considered the opposition to be filed in time, because it was proven that the debtor had only become aware of the seizure one month before the scheduled auction and immediately filed the appeal. Subsequently, it granted the appeal, annulling the attachment, holding that the evidence produced before the Court proved that the service made was entirely arbitrary and unauthorised on the part of the management company, knowing that the debtor's actual address was not there, with the further consequence that service at a different address from the actual address is tantamount to the non-existence of the statutory service of the seizure report of the property, rendering the seizure null and void, irrespective of the invocation and the existence of the element of procedural default. As a result, the Court annulled the seizure report in question, with the result that the auction that was to be held on the basis of the report was cancelled.
The contested passage of the decision reads as follows: 'In consequence of the above, in view of the fact that the aforementioned service at a non-actual residence is equivalent to a failure to effect service and the failure to formulate it entails, according to the above legal assumptions, nullity irrespective of the invocation and the existence of the element of procedural prejudice (Article 159 no. 1 of the Civil Procedure Code), the objection must be upheld as well-founded as regards the first of the defendants' objection and the bailiff's report of forced seizure of immovable property No. 3743/26.7.2022 must be annulled...'.
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