Protection against unjustified debt collection requests

Nino Sievi
Nino Sievi

In three judgments, the Federal Supreme Court comments on the scope of the new legal provision introduced in 2019 for additional protection against unjustified debt collection. The rulings restrict the remedy in various respects.

The Federal Debt Collection and Bankruptcy Act (SchKG) provides for various ways of protecting oneself against unjustified debt collection and defending one's creditworthiness. Until now, however, this required the initiation of court proceedings - with the corresponding costs.

On 1 January 2019, however, an additional legal remedy was introduced (Art. 8 para. 3 lit. d SchKG), which can be used to prevent the debt collection office from providing third parties with information about a debt collection. After three months have elapsed since the service of the order for payment, the debtor can apply to the debt collection office for non-disclosure of the debt collection. The creditor is then requested to provide proof that he has initiated proceedings in good time to eliminate the legal opposition made by the debtor. If the debtor does not provide this proof within 20 days, the debt collection office does not inform third parties about the debt collection.

The Federal Supreme Court has ruled on three open questions regarding the scope of Art. 8 para. 3 lit. d SchKG (5A_656/2019; 5A_701/2020; 5A_927/2020). It follows from these rulings that in the following constellations the debt collection office must reject a request for non-disclosure of the debt collection under Art. 8 para. 3 lit. d SchKG (cf. Federal Supreme Court press release):

  1. After the legal opposition was made, the creditor filed a request for summary removal of the opposition, which was subsequently rejected. The creditor did not take any further measures and the deadline for continuing the debt collection pursuant to Art. 88 SchKG has expired in the meantime.
  2. After the legal opposition was made, the debtor paid the amount demanded to the debt collection office.

As these Federal Court rulings show, the newly created remedy of Art. 8 para. 3 lit. d SchKG can only be invoked if (i) the debtor has not paid the debt pursued and (ii) the creditor has not initiated any legal remedies to eliminate the legal opposition.

This significantly limits the scope of application of Art. 8 para. 3 lit. d SchKG. If the requirements for this remedy are not met, the debtor is left with only a negative declaratory action under Art. 85a SchKG, in order to remove the entry in the debt collection register.

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