September 2022 – Annulment of a seizure of immovable properties – Violation of the principle of written evidence in the enforcement proceedingslawuser
Recently, decision No. 959/2022 was issued by the Single-Member Court of First Instance of Athens, by which the writ of payment and the based thereon seizure of immovable properties, were annulled. Specifically, the aforementioned decision, recognizing the importance of adhering to the principle of written evidence in the enforcement proceeding, as stipulated in Articles 924 and 925 of the Civil Procedural Law, annulled the aforementioned acts and cancelled the enforcement procedure upheld against our principals.
In particular, the decision states the following: “Furthermore, according to the provision of Article 924Code of Civil Procedure, the writ of payment, as the first act of the enforcement proceedings and at the same time the pre-trial procedure, must necessarily be served to the obligor, while according to the provision of Article 925CCP, it clearly follows that the successor of the lender, who is not referred to in the relevant title and is entitled under Article 919 § 1 CCP or another special provision to initiate or continue the enforcement proceedings, is obliged for the validity of the compulsory execution initiated by him to serve to the obligor a new writ of payment, even if a previous writ has been served, as well as the legal documents of its succession, whether they are public or private, both for the initiation and the continuation of the enforcement proceedings […] These must be served in the original or in an official copy. Mere mention of them in the writ of payment is not sufficient. Violation of Article 925 § 1 CCP entails the invalidity of the execution regardless of damage, given that the phrase used by law “cannot initiate or continue compulsory execution” is equivalent to the threat of invalidity […] However, as mentioned above, these documents must be served to the obligor in the original or in an official copy, as is also the case for all documents of Article 925 § 1 CCP. In this case (…) the documents served on 16.11.2021 (…) referring to the assignment and service of receivables , are simply photocopies, and not originals, nor lawfully certified copies of the original documents (…) it was required to serve, according to what was stated in the previous legal reasoning, the original documents or lawfully certified copies of these documents, which it did not do, resulting in the invalidity of the continuation of the enforcement proceedings, regardless of damage, due to the strictness in the wording of Article 925 § 1 CCP, which is equivalent to a threat of invalidity. Based on the above, both writs of payment dated 12.11.2021 and the subsequent seizure of immovable property (…) are also invalid and must be annulled […]’.
The above highlight the importance of strict adherence to the principle of written evidence, as established by the legislator, and recognizes its significance by jurisprudence, a fact that further demonstrates that enforcement proceedings is a strict-formal procedure, the correct observance of which is essential for ensuring the legality of the entire enforcement procedure. Thorough research into the legal-formal terms of its conduct, beyond specific other grounds for objection that may be based on each particular case, is necessary for a more effective defense and protection of the legitimate rights of the obligor.