January 2024

Judgment of the Athens Court of First Instance on the annulment of a payment order due to incomplete validation of documents

Recently, the decision of the Athens Court of First Instance (interim measures procedure) No. 256/2024 was issued, which accepted the application for suspension of enforceability filed by our clients in the context of an appeal for the annulment of a payment order.

In particular, the Single Judge of the Court of First Instance suspended the enforceability of the payment order at issue after having presumed the validity of the formal ground of the order, namely the lack of written proof of the existence and amount of the alleged claim, on the basis of the following assumptions: "[...] it was presumed that the defendant, in order to obtain the contested payment order and in order to prove the claim at issue, submitted photocopies of the credit agreement of 23 July 2007 with an open account, the guarantee agreement of 13 December 2007, the guarantee agreement of 14 July 2007, the guarantee agreement of 14 December 2007 and the guarantee agreement of 13 December 2007. 12.12.2007 additional deed, the additional deed of increase dated 23.07.2007 together with this letter and the guarantor's declaration and the additional deed dated 14.06.2013 together with the annex thereto, concluded by the above-mentioned company and the applicants with the bank under the name of ......... . However, the submitted photocopy of the credit agreement dated 23.07.2007 with an open correspondent account does not bear a ratification by a lawyer, and the certification borne by the submitted photocopy of the additional deed dated 23.07.2007 and the terms and conditions of the credit agreement dated 23.07.2007, which is a separate document, is not sufficient. Similarly, a simple copy of the additional deed of increase dated 14.12.2007 to the credit agreement of 23.07.2007 was produced, without the existing certification by a lawyer in the letter of 14.12.2007 following the above additional deed also covering the contents of the additional deed of 14.12.2007, since that letter is a separate document. Whereas, also a plain and not certified copy of the additional deed dated 14.06.2013 to the open account credit agreement was produced without the lawyer's certification present in the "Annexure to the 14. 06.06.2013 additional deed to the credit agreement with open correspondent account" attached to it covers the relevant lack of certification of the above additional deed, since the documents are also different, without their pages having a uniform numbering. Consequently, the specific photocopies produced by the defendant in support of its claim are presumably not drawn up in the legal forms and, therefore, there is no written proof of the defendant's claim [...]'.

As we have also mentioned in a related article, under the provision of Article 623 of the Code of Civil Procedure (CCP), a payment order may be issued if, among other conditions, the claim and the amount due are proved by a public or private document. The provision defines a document as, in principle, the original document, that is to say, the document bearing the borrower's handwritten signature. However, according to the provision of Article 449 par. 2 of the CCC: 'Photographs or photocopies of documents have the same evidential value as the original, provided that their accuracy is certified by a person authorised by law to issue copies'. Therefore, the claim and the amount due must be proved by a document produced in original or certified copy. If the creditor produces a simple copy of one of the documents (e.g. the original loan agreement) for the issuance of the payment order, the payment order is cancelled on appeal for lack of documentary evidence of the claim.