April 2024

Decision of the Athens Court of First Instance which presumed the invalidity of the transfer of a claim to a fund

The decision of the Athens Court of First Instance No. 1915/2024 has been published, which presumed a ground of appeal against a payment order concerning the invalidity of the transfer of a loan receivable from a credit institution to a special purpose company (fund) under Law 3156/2003 and ordered the suspension of the enforceability of the payment order. 

In particular, in 2003, 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 presumed that the transfer of the loan receivable in question in the context of the securitisation was irregular. Any invalidity of the transfer of the debt 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.

Consequently, on the one hand, the enforceability of the payment order has been suspended, with the result that the creditor is unable to proceed with any enforcement action, and on the other hand, a significant error has been presumed, not only in the payment order itself, but also in the claim itself and its actual bearer.