Not just anyone can be served with a summons!
I went away on a trip for a few months and when I came back I was surprised to receive a "notice of seizure" from the debt collection office. They explained that proceedings had been brought against me and that a summons to pay had been served on the friend who was looking after my flat and feeding my cat while I was away! Is this admissible? How do I defend myself? Robert, Geneva
You are right to wonder about this, as the notification of a summons to pay to a person other than the debtor is only valid in very limited cases. Article 64 paragraph 1 of the Federal Law on Debt Collection and Bankruptcy (LP) stipulates that a summons to pay must be delivered personally to the debtor or, in his absence, to an adult member of his household or to an employee. The purpose of this rule is to ensure that the debtor has a real opportunity to acquaint himself with the document. The Federal Court has specified that this delivery cannot be made to just anyone: it is not enough for the person to simply be present in the dwelling or building; he or she must also be part of the household or acting in a professional capacity.
In your case, the friend who was looking after the flat does not appear to be an employee or a member of your household. He was therefore not authorised to validly receive a summons to pay on your behalf. The notification to this person was therefore irregular. This procedural defect may invalidate the notification - and therefore the entire ensuing proceedings - if you did not in fact become aware of it in time to react.
However, case law accepts that an incorrectly served document can be effective if the debtor was able to become aware of it despite the defective notification. In your case, if you discovered the summons to pay on your return from your trip, for example by finding it in your pile of mail or by receiving a copy after dealing with the Debt Collection Office, it is imperative that you lodge an objection with the Office that issued it and at the same time lodge a complaint with the Debt Collection and Bankruptcy Supervisory Authority for irregular notification, in both cases within ten days of becoming aware of the summons to pay. If you fail to do so, you will be deemed to have waived your rights.
To sum up, giving your friend the summons to pay does not appear to be valid according to the law and case law. If you discover that legal proceedings have been opened against you, you should immediately consult the debt collection office and request a copy of the payment order if you do not have it in your possession, and then take the steps indicated above.
