An unjustified order to pay

An unjustified order to pay

 "I've received an order to pay CHF 10,000, but this sum isn't due. As a result, my extract from the debt collection register is no longer blank, even though I've always paid all my debts. What can I do about this? " 

Henri, Veyrier

When you receive a summons to pay, the first thing to do is to check whether the sum claimed is actually due, failing which you should lodge an objection as soon as possible. In order to be served with a summons to pay, the alleged creditor does not need to prove that the amount claimed is actually owed. This Swiss particularity is counterbalanced by article 74 of the Federal Law on Debt Collection and Bankruptcy (LP), under which the debtor can simply stop the debt collection process by lodging an objection directly with the person issuing the summons to pay or with the Debt Collection Office, within ten days of notification at the latest.

This opposition is essential because it obliges the creditor to seek the intervention of a judge, who will then, if he persists in his claims, have the burden of proving that the amount he is claiming is indeed owed. This can be done by means of an action for acknowledgement of debt (article 79 LP) or by requesting the provisional or definitive release of the opposition through a more rapid procedure, depending on the evidence he holds to demonstrate the validity of his claim, in accordance with articles 80 and 82 LP. Only if the creditor obtains judicial annulment of the opposition can the debt collection procedure continue with the assistance of the debt collection and bankruptcy office.

If no objection has been made within 10 days, the creditor can simply ask the debt collection office to continue the debt collection proceedings at the end of a period of 20 days following notification of the summons to pay, which makes the procedure much quicker.

In both cases, the creditor has one year in which to act, failing which the proceedings he has initiated will lapse (article 88 LP).

The problem is that even unjustified or out-of-date proceedings remain on the Office's books, which can be very disadvantageous for the person concerned. To correct this undesirable effect of the system, the legislator recently introduced article 8a paragraph 3 letter d LP, which came into force on 1 January 2019. This provision allows the debtor to request, at least three months after notification of the summons to pay, that a debt enforcement action against him or her not be disclosed in the debt enforcement extract. However, this request will be forwarded to the creditor, who will be given a short period in which to prove that proceedings are in progress, which may remind him to take action if he decides to delay or neglect to do so...