Getting a lawsuit struck off

Getting a lawsuit struck off

"I've asked my creditor to cancel the debt collection proceedings after I've paid off my debt with interest and costs. Can I force him to do so?

Michel, Geneva

Under the Debt Enforcement and Bankruptcy Act (LP), any person who believes that he or she is the creditor of a defaulting debtor may submit a "debt collection requisition" to the Debt Enforcement Office. The Debt Enforcement Office then serves a summons to pay on the debtor in question, without having to verify the validity of the alleged debt.

When a summons to pay is served on the debtor designated by the claimant, the law allows the latter to contest the existence or enforceability of the claim by lodging an objection within ten days.

In the absence of opposition, the creditor may request the continuation of the proceedings on expiry of a period of 20 days from notification of the summons to pay. This right, which leads to the seizure of the debtor's assets or to the debtor's bankruptcy, must be exercised within one year of notification of the summons to pay, failing which it will lapse.

As a result, a negligent debtor runs the risk of having his assets seized and then realised without the existence of his debt even being proven.

To avoid this risk, the debtor may at any time file an action for annulment of the debt with the Civil Court of First Instance if he is able to provide documentary proof that the debt has been extinguished in terms of capital, interest and costs, in particular by means of a receipt or a receipt. This action is subject to the summary procedure. Simple and fast, this procedure can be initiated by a written request, or in simple cases orally.

On the other hand, if the debtor is unable to provide "directly available" evidence and, for example, has to call witnesses, he is obliged to bring an action for a declaration that the claim does not exist under the ordinary procedure or the simplified procedure if the amount in dispute does not exceed CHF 30,000.

Once you have paid off your creditor in full and the creditor objects to the debt being struck off, you have two options. You can choose to remain inactive until the lawsuit lapses, which will mean that all previous actions lapse. The disadvantage of this option is that even if the debt collection procedure is halted, it will remain on the extract that the debtor could request from the Office, for example to rent a flat. It is therefore preferable, albeit more complicated and more expensive, to initiate proceedings on the merits before the Civil Court, taking care to ensure that your recalcitrant creditor is ordered to pay the costs of the proceedings.