Complaining about a lawsuit
Complaining about a lawsuit
"Is it possible to lodge a complaint against a creditor who shamelessly sends us to the debt collection office when we can justify that we owe him nothing?
Eric, Geneva
The Federal Law on Debt Collection and Bankruptcy (LP) allows creditors to apply to the State to force debtors to perform their obligations. It offers simple and rapid means for both the debtor and the creditor to defend their rights: each can, in turn, suspend or restart the proceedings under certain conditions.
The procedure begins with the creditor's request to take legal action, which consists of filling in a form requesting only the strictly necessary information (amount and contact details). The Office will then send a "summons to pay" to the person designated as the debtor. At this stage, the authority is neither obliged nor competent to verify the existence of the claim or the correctness of its amount. This means that anyone can effectively claim to be a creditor, even if they are wrongly so. According to the Federal Supreme Court, the Office must nevertheless, on pain of exposing itself to an administrative complaint, refuse to act on a request if it is clear that it is abusive, in particular when the so-called creditor's aim is to damage the economic or social reputation of others, or when he is claiming a sum that he has no chance of being awarded by a Swiss court.
When a summons to pay is served on the alleged debtor, the law allows the latter to contest the existence or payability of the debt by lodging an "opposition" within a maximum of ten days, often directly with the postman. This opposition suspends the procedure and places the onus on the debtor to prove the existence of the debt not before the debt collection office, but before a civil judge.
The question arises as to whether a purely quibbling lawsuit can constitute an unlawful violation of personality within the meaning of articles 27 et seq. of the Civil Code. If this is the case, the person who has been wrongfully sued could ask for the infringement to be stopped or prohibited, and for damages to be awarded, including compensation for the non-material harm caused.
However, anyone who dares to regularly file unfounded prosecution requests that constitute a threat of serious harm or in any way hinder the freedom of action of the person being prosecuted could be guilty of attempted coercion punishable under article 181 of the Criminal Code.
