CANCELLATION OF FUND-ACCELERATED AUCTION AND COMPLETION OF NEGOTIATIONS BY ACHIEVING SETTLEMENT WITHIN BUSINESS SUSTAINABILITY FRAMEWORK
An answer is provided by the real case of a company mentioned below, which resulted in a successful negotiation, despite the imposition of a seizure on its business property and the definition of an electronic auction, which auction was not completed for three years, and in the end the forced execution was judicially annulled ( auction continuation statement), which was expedited by a management company on behalf of an acquiring foreign company (fund).
Specifically: The Single Member Court of First Instance of Athens irrevocably ruled according to article 973 of the Civil Code. that the expedited auction by a foreign receivables acquisition company (FUND), which acquired the overdue business receivable in question for a total amount of 10 million through securitization from Bank …….. SA, is VOID.
The borrower company T....AE and its guarantors had appealed, alongside the legal actions, both to bilateral negotiations and to the out-of-court mechanism for the out-of-court restructuring of the indebted company's debts against all its creditors.
The fund that acquired the claim, asserting that it has a legal right, alongside the out-of-court restructuring efforts of the business and while these were in progress, accelerated in the year 2019 an abusive electronic auction of the sole business property of the company, the operation of which generated the income and profits that the company was showing.
As is known, after the recent amendments of the K.Pol.D. suspension of the auction is no longer foreseen at the stage of enforcement actions. Thus, it is possible for objections and decisions to be issued on objections to be pending and for the electronic auction to progress and be completed with the sale of the seized property, without the borrower's objections having yet been decided and with the often severe possibility that the borrower will be vindicated in the end, after the sale of the property and his forced expulsion from it.
In this particular case, in parallel with the negotiations, all the foreseen judicial actions to suspend and cancel the auction were initiated (due to the abuse of the acceleration of this in the midst of negotiations, the validity of the suspension of execution acts, due to the abusive G.O.S. charges. ) and finally due to the illegality of the securitization of the claim to the fund and the continuous changes and transfers of the claims of the specific securitization to various management companies, so in the year 2021 without having yet completed the sale of the property, due to previously accepted court decisions regarding the suspension of this for a limited period of time, an irrevocable decision was issued according to art. 973 K. PolD. where the Court definitively judges that the declaration of continuation of the auction suffers from vagueness and specifically accepts that although the management company bore the burden of proof, it failed to prove the existence and content of its management authority and did not specify the vague references to which exclusively acted on its legalization to expedite auctioning. With this decision in the year 2021, the auction is now cancelled.
The result of the above court actions (with which an auction can no longer be expedited until all invalidities and uncertainties of the securitization are removed) was that both parties "sit down" again at the negotiation table, with different claims regarding the amount of the claim that they require to be paid and to finally achieve out-of-court restructuring with more realistic collection goals and commercially desirable and sustainable goals, the fund now renouncing the imposed auction.
Legal Advisor – Partner of AFS #mazimegalonoume