June 2023 – Final annulment of the seizure report due to the illegal validation of the documents constituting or evidencing the requisite power (legalization) that were presented by the opposing partylawuser
Recently, Decision No. 2857/2023 was issued by the Single-Member Athens Court of Appeals, which, after examining the appeal of the opposing party of the expedited auction by a Servicer company (Law 4354/2015), essentially rejected it, confirming the first-instance decision, under no. 959/2022 of the Single-Member Athens Court of First Instance, which had invalidated the acts of enforcement proceedings carried out by the opposing party (writs of payment, forced seizure of real estate) against our clients.
Specifically, the first-instance decision, acknowledging the legal and substantive validity of our motion for annulment, had invalidated the contentious acts of enforcement proceedings due to a lack of written proof, namely, specifically because the opposing party, during the notification of the documents presented as legalising evidence allegedly demonstrating its authority to carry out acts of compulsory execution, which it was obliged to notify under Article 925 of the Civil Procedural Law, notified them without previously validating them legally. Instead, it proceeded to notify simple photocopies of previously validated documents.
The opposing party claimed in its appeal that allegedly each of the writs of payment issued and the copy of the enforcement order with which it was equipped (it concerned a case of acts of enforcement proceedings based on 2 writs of payment) collectively constituted, together with the documents presented as legalising evidence, which were transmitted as a single document, bearing the seal of its duly authorized lawyer on all pages and their signature at the end of each payment order/execution.
However, the aforementioned decision of the Court of Appeals dismissed the opposing party’s relevant claim with the following reasoning: “However, from the review of these documents, it is evident that only the seal of the plaintiff’s lawyer has been affixed to all the pages, and not the signature. Furthermore, on the first page of the writ, it is mentioned that the copy of the first enforcement order is certified, while further down it is stated that the following documents are being communicated in duly certified copies without any reference to their certification by the authorized lawyer of the plaintiff. From the documents themselves, which are served as mentioned above, there is no doubt that they were not certified by the authorized lawyer of the plaintiff at the time of certifying the copy of the first enforcement order, but they are unauthenticated photocopies of previously certified copies.” The decision followed the prevailing jurisprudence and legal theory, which states that the provision of Article 925 of the Code of Civil Procedure refers to the service of originals or duly certified copies.
Furthermore, the aforementioned decision also dismissed the second ground of appeal raised by the opposing party, in which they complained about an allegedly excessive court costs awarded against them in the amount of 4,500 euros, with the reasoning that this amount was in accordance with the provisions of the Lawyers’ Code, as we have previously detailed in our rebuttal to the relevant ground of appeal.
Finally, it should be noted at this point that the enforcement process is a strict/formal procedure, and a violation of its guarantees may lead to the annulment of the enforcement measures taken against the debtor. For this reason, it is vital for the debtor to thoroughly examine any deficiencies that have occurred in the process due to the actions of the enforcer and to present well-documented evidence of such deficiencies before the Court. The annulment of the enforcement procedure being carried out against the debtor, even for formal reasons, has the potential to encourage the Service company to be more flexible and receptive to a negotiated settlement of the dispute by reaching a realistic agreement on the claims it maintains against the debtor.