October 2023

Decision of the Athens Court of First Instance on the Recognition of the Invalidity of the Transfer of a Loan Claim to a Fund

The decision of the Athens Court of First Instance No. 3335/2023 has been published, which declared the transfer of a loan receivable from the credit institution to the special purpose company (fund) under Law 3156/2003 invalid. In particular, in 2003, the Parliament passed a law concerning, inter alia, the 'securitisation of receivables' (Law 3156/2003). The aim was to adopt a framework for financing companies by selling their receivables. Thus, instead of a company taking out a bond loan, for example, it sold part of its receivables to third-party investors (see explanatory memorandum: 'The legislative regulation of securitisation is necessary for the modernisation of financing techniques in Greece for the benefit of Greek companies and the national economy'). Since then, the law has been used almost exclusively by credit institutions for the pure purpose of restructuring their balance sheets. The present decision recognises that the transfer of a specific loan receivable took place in an irregular manner. This has the following consequences: (a) that the Servicer not only cannot carry out enforcement actions (seizures, auctions) but cannot even pursue collection since it has now been recognised that the claim does not belong to the Fund but to the credit institution that allegedly sold it, (b) any termination by the Servicer or the Fund is invalid since the right of termination was never transferred to it due to the invalidity of the transfer agreement; and (c) the bank, which continues to be the beneficiary of the claim after the invalidity of the transfer was recognised, has ceased to take legal action for recovery (filing of lawsuits, etc.). ), which raises various issues of possible limitation, etc. The crucial passage of the judgment is as follows: "In consequence of the foregoing, the present action must be dismissed to the extent brought by the third plaintiff, upheld in part as well as being well-founded in substance in all other respects, and the invalidity of the contract of transfer of the property arising from the contract of transfer of 22-12-2017, No. ... credit agreement with an open mutual account receivable from the banking company named ... to the second defendant and the termination of the above credit agreement by the first defendant on 29-7-2020'.