Legal objection
A person against whom unjustified debt enforcement proceedings have been initiated must first lodge a legal objection. This can be communicated to the debt enforcement office verbally or in writing within 10 days and does not need to be justified. The legal objection stops the debt collection proceedings from continuing. If the creditor still wants to continue with the debt collection, they must initiate legal proceedings to have the legal objection lifted, known as a legal enforcement. However, this is rarely the case for unfounded claims. Even if the creditor does not pursue the debt collection, the entry in the debt collection register remains in place for the time being.
Legal options
There are several legal options for deleting an entry in the debt enforcement register or making it unrecognisable to third parties.
1. Art. 8a para. 3 lit. d SchKG
In the case of unjustified debt enforcement proceedings, it is possible to prevent these from being displayed to third parties in the debt enforcement register extract upon request. The debtor must first wait three months after the payment order has been served. If the creditor has not initiated proceedings to lift the legal objection within this period, the debtor may submit a request to the debt enforcement office not to disclose the debt enforcement to third parties. The debt enforcement office then requests the creditor to comment within 20 days. If the creditor cannot provide evidence that they have initiated legal proceedings or a court action, the request will be granted and the debt enforcement proceedings will no longer be disclosed to third parties. However, the entry in the debt enforcement register will become visible again if the creditor subsequently provides evidence or continues the debt enforcement proceedings.
2. Complaint pursuant to Art. 17 SchKG
A determination that debt enforcement is abusive and therefore void can also be made by lodging an appeal with the supervisory authority of the debt enforcement office. The deadline for this is 10 days from the date of service of the payment order. The authority will examine the facts of the case ex officio and revoke the debt enforcement if it is deemed to be abusive.
However, an appeal under Art. 17 SchKG can only examine the legality of the debt enforcement itself. Objections to the existence, scope or due date of the debt being enforced must be raised by means of an action for non-existence of a debt. Even if the debt enforcement is revoked, the creditor retains the right to bring an action before a civil court. The appeal procedure is usually free of charge.
3. Action for non-existence of a debt under Art. 85a SchKG
An action for non-existence of a debt is a negative declaratory action. It initiates civil proceedings in which a court determines that a disputed claim does not exist and that the debt enforcement was therefore unfounded. An action for non-existence of a debt therefore reviews the validity of the claim. If the action is upheld, a final decision is made on the existence of the claim.
Our attorneys-at-law at Pilatushof AG will be happy to answer any questions you may have regarding debt collection and bankruptcy law.