January 2023

Judgment of the Athens Court of First Instance on the Cancellation of a Warrant for Execution for an amount of approximately EUR 5.5 Million

The decision of the Athens Court of First Instance No. 65/2023 was issued, by which our client's objection was upheld and a cheque to be executed on behalf of Servicer for an amount of approximately EUR 5.5 million was cancelled. Of interest in this case was the following: our executory defendant client had filed an objection against the cheque for payment before the Servicer proceeded with the attachment. Therefore, the court of the debtor's place of residence had jurisdiction. But then, in the subsequent foreclosure, he re-filed an objection with jurisdiction now in the court of the place of execution, thus where the seized property was located (see § 933(933). 3 of the CCP: "The court of the district of the place of enforcement is always competent locally if other acts of the enforcement procedure followed the service of the cheque, otherwise the court of Article 584 has jurisdiction"). Consequently, there have been two debates on opposition before two different courts, with the second court being obliged to annul the attachment because it is based on a cancelled cheque for execution (the effects of the opposition under CCC 933 come into effect with the issue of a final judgment in the first instance and not a final judgment, and therefore the cheque is now considered null and void against all parties).

The reason why the objection was upheld is the lack of active legitimacy of the management company under Art. 4354/2015 (Servicer) to accelerate enforcement when the transfer of the loan claim had taken place under Law 4354/2015. 3156/2003 on securitisation of receivables, because the latter does not confer this right on the Servicer. In this regard, we have already written quite a lot and many decisions have been issued, mainly by Courts of Appeal, accepting the inability of Servicers to carry out seizures and enforcement actions in general. Recently, the issue was even referred to the Supreme Court's Plenary Session as controversial in order to be definitively resolved for the sake of legal certainty.

(for more see here)