George Zaouris, Trainee lawyer
Summary: The enforcement acts carried out in the procedure leading, inter alia, to the auction may be vitiated by defects. The existence of such defects does not automatically lead to the annulment of the enforcement acts. On the contrary, the debtor needs to go to court by bringing an action for annulment of the enforcement procedure by means of the remedy of opposition under Article 933 of the Code of Civil Procedure. This article analyses the relevant requirements and sets out the relevant case law on the possible defects in the service of the seizure report.
Enforcement acts carried out in the procedure leading, inter alia, to auction may be vitiated by imperfections. The existence of such defects does not automatically lead to the annulment of the enforcement acts. On the contrary, the debtor needs to go to court by bringing an action for annulment of the enforcement procedure by means of the remedy of opposition under Article 933 of the Code of Civil Procedure. The declaration of nullity is then made by the court if it accepts any of the grounds put forward by the debtor in his opposition. In fact, the invalidity of such acts must be proposed in a timely manner, within the time limits provided by law (Article 934 of the CCP) under the system of stage-by-stage challenge of enforcement acts, because, otherwise, the unfulfilled expiry of these time limits cures the invalidity, in the sense that it renders the invalid acts immune (CC 446/2016, CC 93/2001).
Possible reasons for an opposition to annul the enforcement proceedings against the debtor may relate to defects in the service of the attachment report on the debtor. This article therefore examines the question of the service of the attachment report on the debtor in the context of enforcement proceedings and the consequences of failure to comply with the formalities laid down by law.
2. About the service
Initially, service may be defined as the delivery of a procedural or other type of document to the addressee/recipient by means of the handing over of the document or other equivalent act according to the law by a competent body. As a general rule, the competent authority for service under national law is the bailiff (Articles 122(1) and 127(1) of the Code of Civil Procedure).
The debtor receives official knowledge of the seizure through the delivery of a copy of the seizure report by the bailiff (Articles 955(1) and 995(1) of the CCP), provided that he is present after the seizure and does not refuse to receive it. Otherwise, only a report certifying the refusal shall be drawn up. Usually the bailiff, if the property is seized, in order to avoid friction, will not enter the property but will serve the debtor with a copy of the seizure report no later than the day following the seizure, provided that he resides in the district of the municipality where the seizure was made. If the debtor's residence is in a municipality other than the one where the seizure took place, service shall be made within eight days of the day following the day of the seizure. If it is a mortgage foreclosure, a copy of the seizure report must be served on both the debtor and the third party, owner or tenant of the property in question (Article 995(3) of the CCP). If the addressee is not at home, the document is delivered to one of his adult relatives who are aware of their actions and are not involved in the proceedings as opposing parties (Art. 128(1) CCP).
Compliance with the above formalities is specified in the law under penalty of nullity. Service may, however, not only be invalid, but may be invalid.
3. Distinction and practical consequences
We will, initially, speak of improper service if defects are found in the act of notification itself, i.e., if service was effected a) by an unauthorised person or to a person unqualified to receive it (e.g. to a person unrelated to the public limited company and not to its legal representative), b) out of time - or not served at all -, c) at a place other than the one legally provided for (a. 124, 128 CCP). Cases of late service will, in practice, occur when either the next day of the seizure or the next eight days have passed, depending on whether the debtor has his residence in the municipality where the seizure took place or not, as mentioned in the previous paragraph (cf. E.g. Aegean Court of Appeal 18/2020 "[... ]the service of the copy of the above statement of deposit should have been made no later than the day after the day on which the seizure took place, i.e. on 31-5-2017, since, as it was proved, the opposing party-whose execution was carried out, also had his residence in the place where the seizure took place, with the consequence that the execution carried out at his residence in Athens, on 2-6-2017, was out of time, rendering the seizure null and void and even without the prejudice of article 159 no.3, according to the first ground of the contested opposition, which is well-founded in this respect").
In cases of default, the debtor, that is, in most cases, does not have, in practice, the possibility to take note of the seizure and defend himself within the limits provided by law. Once service has been effected, any other irregularity regarding the procedure of service of the seizure report on the debtor or its contents will merely result in the invalidity of the said act, not in its nullity. The practical importance of this distinction lies in the fact that in the case of unauthenticated service the debtor may bring an opposition (Art.933 CCP) to annul the enforcement proceedings against him, without having to prove that he has suffered damage (Art.159(1) CCP). It is important to note that the exercise of the opposition in this case is not subject to a certain time limit, since in order to initiate the latter, service must have been effected and the debtor must be aware of it. On the contrary, in any other case, the element of prejudice to the debtor is fundamental to the invalidity of the attachment (Article 159(3) of the CCP). As the Supreme Court's decision No 93/2001 of the Supreme Court states, omissions and any error in the service of the documents, which was carried out in time, are invalid only if there is procedural prejudice, unlike in cases of omission or late service. Damage means the inability or difficulty of the party claiming it to put forward a complete defence to the action (in this case, the acts of the enforcement procedure) because of an error in the service of the seizure report in support of his claims. Thus, it is considered that there is no procedural prejudice in the case where provisions regulating the procedure have been violated, when the possibility and condition of the party's defence or the exercise of the remedy are not affected by the violation (Patras Single-Member Court of First Instance 33/2021). The legislator speaks of procedural harm, harm that is located at the level of the provisions established by the Code of Civil Procedure, but the harm may also be pecuniary.The above is made clearer through case law examples:
4. Example of unsubstantiated performance
In the following case it was held that the service of the summary of the seizure report is not valid and therefore the element of prejudice is not required for the opposition to be admissible:
Rhodes Magistrate's Court 26/2016: service of the seizure report at an old address despite the notification of the new address (a. 119 and 120 CCP) and violation of the bailiff's official duty to investigate ex officio whether the place where he performs service is the residence of the recipient of the notification ("Consequently, the service of the summary of the compulsory seizure report at an address where the recipient of the service does not reside, in such a way that it becomes impossible for the recipient to know it, is unsubstantiated and constitutes a primary defect of the auction [. ..]").
But be careful! Failure to disclose the new address makes service at the old address valid regardless of whether the debtor was unaware and suffered damage! This was also ruled by the Supreme Court in its decision No 936/2020, based on the conclusion of the Plenary Session in its decision No 3/2007: 'If, however, it is not simply a defect or disorder in the pre-auction procedure, but a complete lack of all or one of the formalities required by law for the auction to take place, and despite this lack the auction is carried out, then it is invalid regardless of any damage [. ...] The failure to serve a summary of the property seizure report is also equated with its service at a residence other than the actual residence of the person to whom the service relates, since because of this incorrect service he is unaware of the auction being held and can, if it is held, challenge it, without further action, as invalid within the time limit of Article 934(1). c of the CCP, with an objection in which he will rely for its admissibility that the person who expedited the execution knew his actual residence or that he had timely notified him of any change in it (OLAP 3/2007, AP 477/2019, AP 1869/2017, AP 1081/2014, AP 8/2011)."
5. Examples of invalid service
In the following cases it was accepted that service is invalid with the assistance of the element of prejudice as explained above. The difference with the immediately preceding examples lies in the fact that service is considered to be a substantive act, produces legal effects and is merely vitiated by errors which justify its annulment, since the debtor has suffered damage as a result. The opposition here is not merely declaratory, as it was before, but a cross-application.
- Supreme Court Judgment 279/2004: it was accepted that service on a person as if he were of unknown residence, whereas he was of known residence, is invalid and "may be challenged by means of an opposition if the conditions of Article 159 (3) of the Code of Civil Procedure (damage) are met". If the debtor is of unknown residence, i.e. if the place or the exact address of the debtor's residence is unknown, service is made on the prosecutor of the district court of the place of execution and at the same time a summary of the seizure report is published in two daily newspapers, one of which must be published in Athens and the other in the court's seat. If the above is complied with even though the debtor has a known residence, the latter may bring an action for an injunction, proving the damage suffered by not having been duly informed.
- Judgment of the Supreme Court 770/2008: in this judgment it was accepted that service, in the absence of the debtor, on a person who is not his relative, but happened to be there, even if he belongs to his family, is unlawful and may be challenged by way of an opposition, if the debtor suffers damage.
- Supreme Court Judgment 355/2006: The court accepted that "In order for a document to be lawfully served by postal service at the residence of the addressee, it must be certified in the service report that there are no accompanying persons of the addressee absent or present [. ...] However, such service by postal service [...] is not lawful because the service report does not state that the addressee's relatives living with the addressee were sought and were not present or absent[...]'. Tenants by law are those who live in the same apartment, concierges of apartment buildings and their family members who live with them, hotel and boarding house managers and their servants and employees, but not tenants of another apartment or room in the same dwelling (a. In the present case, that judgment explains that the specific defect in the service of the document, relating to the bailiff's failure to mention the absence of accompanying persons in order to justify the attachment, leads to the invalidity of the service, since the debtor was not properly informed and suffered damage.
- In the same context as the above decision, the Federal Court of Appeal 80/2020 held that the invalidity of service by door hanging at home can be declared if the existence of damage to the debtor is established "[...] the invalidity of service under Article 128 para. 4 [...] shall be investigated upon the proposal of the parties and with the assistance of the elements of the damage (CC 1908/2008)".
For a fuller understanding of the last two decisions, it should be noted that doorstopping, as explained in more detail in Article 128(4) of the Code of Civil Procedure, involves a procedure whereby the document must be affixed to the door of the residence and in an unsealed envelope, on which only the details of the bailiff and the person to whom service is to be effected will appear, in front of a witness. Thereafter, no later than the next business day after the docketing, a copy of the document must be delivered into the hands of the chief of the police station or station of the district of residence, as well as mailed to the person to whom service is directed a written notice stating the type of document served, the address of the residence where it was served, the date of service, the authority to which the copy was delivered, and the date of delivery. Any deviation from this procedure may lead to the service being declared null and void if the debtor did not take notice of it as provided for and as he was entitled to do, with the result that there is manifest prejudice.
Therefore, as can be seen from the above examples, the debtor in most cases will be called upon to prove the damage suffered by the debtor as a result of an error in the procedure for the service of the seizure report. Being in a defensive position, the debtor therefore needs to carefully examine each stage of the service in order to identify irregularities and omissions that could potentially lead to the annulment of the enforcement proceedings by the court and to file an objection under Article 933 of the Code of Civil Procedure within 45 days of the seizure.