November 2024 – Suspension of execution of Payment Order and Writ of Payment of the amount of €150.000

By decision No. 4448/2024 of the Single-Member Court of First Instance of Athens (Insurance Measures Procedure), our relevant application for the suspension of the execution of a Payment Order and the corresponding writ of payment expedited by the Srvicer Company, of the amount of €150,000, was accepted, due to the possibility of success of the ground of objection, which related to the non-settlement of the claim due to the indefiniteness of the limitation of the amount for which the issuance of a payment order was requested. Furthermore, with said decision, the irreparable damage of our principals was assumed, as the continuation of the execution would make impossible the operation of the commercial activity of the applicant company, as well as the everyday living of the natural persons-guarantors.

The decision focused on two key points, which are absolutely crucial and must be present in every case where the suspension of execution is requested: on the one hand, on the possibility of success of a reason for opposition against the contested acts, on the other hand, on the possibility of causing irreparable damage to the debtor by the continuation of the enforcement process.

With regard to the first issue, the decision recognized the unsettledness of the claim, which was caused by the indefiniteness of the limitation of the claim, for which the issuance of a payment order was requested by the expedited party.

Specifically, the decision includes the following important considerations – judgments: “From the combination of the provisions of articles 106 and 626 par 1 of the Code of Civil Procedure, it follows that the applicant for the issuance of a payment order can limit the amount, for which he is requesting the issuance, to a part only of the claim or the interest, even if the submitted documents prove the entire claim, and the limitation of the request to part of the capital or the incidental claim of the interest is an exercise of the lender’s procedural discretion, it does not need to be justified (AP 206/2023, AP 1512,2006 TNP LAW, EfPir 112/2023 published on the website of the Court of Appeal of Piraeus, EfPir 256/2014 TNP LAW). However, the above limitation should not cause uncertainty regarding the remaining part of the claim, for which the issuance of an enforceable title is requested. In particular, when the claim is made up of several funds, such as capital, contractual interest, default interest, expenses, levy Law 128/1975, etc., the limitation of the amount, for which the issuance of a payment order is requested, is admissibly attempted, only if specified by the applicant to which individual funds it pertains or when the claim is limited accordingly by a percentage of its total and, in this way, a corresponding reduction of all funds occurs, because otherwise the claim, for which the issuance of an enforceable title has been requested, cannot be specified (OLAP 3012007 TNP LAW). The above clarification as to the limitation of the amount is necessary, because the defendant against the payment order, defending against its validity, by exercising opposition under article 632 of the Code of Civil Procedure, bears, as stated above, the procedural burden not to challenge the claim in general as to its amount, but to specify specifically the individual funds that it offends, since the success of any reason for opposition will result in the invalidity of the payment order for the corresponding part, by which the debt will be reduced. However, the objection on the grounds of opposition to specific funds of the claim, which consists of capital, interest, costs, etc., is not possible if it is not clear, from the content of the payment order, which are the particular individual funds that make up the claim, after the restriction by the lender. Additionally, if there is no specificity as to the funds comprising the claim, as limited, it cannot be determined by the Court whether the asserted grounds of opposition are valid, (ie they affect funds included in the claim), to further determine whether the grounds these are legitimate and substantive. Moreover, in the event of the success of any ground of opposition, which affects a specific section of the total debt in terms of its legality or amount (e.g. interest or costs), the Court cannot cancel the payment order accordingly, because cannot deduct the entire fund from the claim, as it was limited, since it is not clear if it includes (and to what extent) the affected fund, nor can it arbitrarily make a proportional reduction by fraction or percentage of the amount of the awarded claim, if the claimant has not specified that he limits his total claim to a specific percentage of the total (ad hoc EfThes 123/2024 TNP LAW). As can be seen from the content of the objection’s application, the limitation of her claim from the amount of 207,616.60 euros to the amount of 150,000 euros was made vaguely, without specifying the individual funds, of which constitutes the part of the total claim, for which the payment order was issued and without limiting the total claim by a certain percentage, with the result that the payment order issued is vague and cannot fulfill its purpose as an enforceable title (…)” .

In relation to the second issue, the decision recognized the fact of causing irreparable harm to our principals from the continuation of the enforcement process.

Specifically, the decision includes the following important considerations – judgments: “Furthermore, it was suspected that the possible execution of the payment order numbered by the Judge of this Court may cause irreparable damage to the applicants, in view of the fact that the first of these is a furniture retail business, the income of which is the sole source of income of the 2nd, 3rd and 4th applicants. Therefore, the execution will make impossible the continuation of the commercial activity of the applicant company and the livelihood of the others.“.

Thus, with the decision in question, the expediting party was temporarily prohibited, until the issuance of a final decision on our objection (which has been scheduled to be discussed in March 2032), to carry out acts of forced execution against our principals, a commercial enterprise, and of its legal representatives (guarantors in the disputed contracts). This fact means on the one hand that the Servicer company cannot carry out a forced liquidation of the movable and immovable property of our principals, but what is more interesting in this case, is that it cannot proceed with the seizure of the bank accounts of our principal-commercial business, the existence and smooth operation of which is absolutely necessary for the uninterrupted continuation of its operation, until the issuance of a decision on the legal aid of the objection against the contested acts (payment order and writ of payment) which will definitively decide their fate (that is, if they are invalid, in which case they do not produce legal results, or not), on the other hand, that our principal debtors are placed in an equivalent negotiating position with the Servicer company, in order to settle their alleged debts with more favorable conditions for them, given that on the basis of the above decision the Servicer company knows very well that the satisfaction of its alleged claim is postponed for a long time.