March 2023

Judgment of the Athens Court of First Instance on the Unlawful Request for Servicer

The Commission issued Decision No. 1742/2023 decision of the Athens Court of First Instance (interim measures procedure), which accepted the application of our client - guarantor under a mortgage loan agreement, for the suspension of the enforceability of a payment order issued against him, as well as the original debtors, following an application by a loan and credit management company, which had taken over the management of the claim in question from a foreign special purpose vehicle, to which the claim was assigned by the credit institution and the original beneficiary of the claim.

It should be noted that, in order to obtain the protective measure of suspension of the enforceability of a payment order, pursuant to Article 632 para. 3 of the CCP, requires the existence of specific conditions and, in particular, the probability of success of the lodged opposition to the annulment of the payment order issued, as well as the existence of an urgent case or imminent danger. 

In this case, the above decision, in granting our client's application for suspension, presumed the existence of urgency and imminent danger, in accordance with the specific facts set out in the application for suspension, and the success of the plea in law raised, the inadmissibility of the contested order for payment of the amount claimed to the foreign special purpose vehicle and not to the joint stock company for the management of loans and credit claims (SACC), which was responsible for the management of the claim in question.  According to the decisive considerations of the judgment, '[...] It follows from the interpretation of the above provisions that in the case where the credit institution's claim is transferred to a Loan and Credit Acquisition Company (LACA) , which is obliged and as a condition of the validity of the transfer of the claim in general, to have entrusted the management of the claim to a Loan and Credit Management Company (LACA) in advance, under the conditions of Article 1(1)(a), it is necessary to transfer the management of the claim to the LACA. 1 of Law 4354/2015, the legitimacy of the EADADP for the judicial pursuit of the claim is, by express legislative provision, exclusive. That is to say, the EADP is exclusively legalised to pursue the claims under administration in court on behalf of and in the name of the EADP. To the extent that the EAPC is granted the power to conduct the proceedings in its own name, it must also be granted the power to demand payment of the debt owed to it by analogy with what is accepted on the basis of the authorisation to collect, where the authorised person does not acquire the claim, which remains with the authorising party, but is merely entitled to pursue it (e.g. to collect it) in his own name, but on behalf of the authorising party (see the judgment of the Court of First Instance of the European Communities in Case C-485/99, paragraph 1.1.1). A. Georgiadis General Law p. 407 under d) [...]'.

Thus, in the light of the above considerations, the Commission's Decision No. 1742/2023 decision of the Athens Court of First Instance, held in the case at hand, thus presuming the success of the relevant ground of appeal, that the disputed and contested payment order inadmissibly awarded the requested amount to the foreign special purpose company, since according to the above major consideration, in the case where the credit institution's claim is transferred to a Loan and Credit Claims Acquisition Company (LACA), which is obliged, as a condition of the validity of the general transfer of the claim, to have entrusted the management of the claim to a Loan and Credit Claims Management Company (LACA) in advance, subject to the conditions laid down in Article 1(1)(b) of the ECHR, to transfer the claim to the LACA. 1 f.c. of Law 4354/2015, as in the present case, the legitimacy of the EDADP for the judicial pursuit of the claim is, by express legislative provision, exclusive and the latter must demand the payment of the outstanding claim to itself, by analogy with what is accepted on the basis of the authorisation for collection.

(for more see here)