Decision No 1088/2024 of the Athens Court of First
Instance has been published, upholding our client's appeal and annulling a
payment order issued at the request of a servicer under a Swiss franc mortgage
loan agreement. Specifically, the court held that the amount of the
claim in favour of the foreign special purpose vehicle (fund) was inadmissibly
awarded, because the servicer may, under
Law no. 4354/2015 (and already under Law 5072/2023), the servicer could only
request payment of the claim to himself and not to the fund whose claims he
manages.
In particular, the decision accepted
that "However, the contested payment order improperly assigned the claimed
amount to the aforementioned foreign special purpose vehicle, since, as stated
in the above legal reasoning, in the case where the credit institution's claim
is transferred to a Loan and Credit Claims Acquisition Company , the latter
must, as a mandatory condition for the validity of the transfer of the claim in
general, must have entrusted the management thereof in advance to a Loan and
Credit Receivables Management Company under the conditions set out in Article
1(1)(a) (ii) 1 f. 4354/2015, as in the present case, where that foreign special
purpose vehicle has entrusted the management of the claims acquired by [... ]
bank to the defendant, the legitimacy of the NADP for the judicial pursuit of
the claim is, by express legislative provision, exclusive and the latter must
demand payment of the claim due to the same, by analogy with what is accepted
on the occasion of the authorization for collection, where the authorized party
does not acquire the claim, which remains the authorizer, but is merely
entitled to pursue it (e.g. to collect it) in his own name, but on behalf of
the authorising party. Consequently, the contested order for payment should
have awarded the above amount to the defendant as administrator of the claim
and not to the beneficiary foreign special purpose vehicle [...]".
As we have already mentioned:
"A first issue concerns the beneficiary of the collection of the debt
being contested in court. In simple terms, when the Servicer claims in court
for the collection of any amount, should it seek payment to the Servicer, who
is merely administering it, or to the fund that has purchased the receivable?
In principle, it is argued that if the Servicer is recognised as having the
power to conduct the litigation on behalf of the Fund, it also has the power to
demand payment of the claim to itself. So if the debtor wants to stop the
auction, for example, he should pay his debt to the Servicer and not to the
Fund. Similarly, in the cheque for payment that precedes the attachment, the
debtor should be ordered to pay the Servicer and not the Fund. This issue is of
course of great practical importance, since if payment is requested to an
unauthorised person, any act of enforcement may be considered null and
void."
(for more see here)
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