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Debt enforcement/distraint

Debt enforcement is the consequence of non-payment of bills. Debt enforcement may result in a portion of the debtor's income and available movable and immovable property being distrained (seized) by the debt enforcement office.

 
 

What is a debt enforcement process?

Debt enforcement enables a creditor to enforce a claim against a debtor with the assistance of the state. This means that a debt enforcement process can force the debtor to pay a claim, unless they mount a defence against the claim (see: What should I do if I receive a payment order?). Debt enforcement may be enforced only by the debt enforcement office. To initiate a debt enforcement process, the creditor must submit a request for debt enforcement to the debt enforcement office. When the debt enforcement office receives a debt enforcement request, it issues the debtor with a payment order (see: What is a payment order?). The debt enforcement office does not examine whether or not the claim is legitimate. The debtor bears the costs of the debt enforcement process.

(Legal basis: Art. 67 ff., Debt Enforcement Bankruptcy Act (DEBA))

 

What is a payment order?

A payment order is issued by the debt enforcement office to require the debtor to pay the claim asserted by the creditor within 20 days or to offer a defence against the payment order (see: What should I do if I receive a payment order? and What can I do if I have forgotten to file an objection?). If the debtor does not pay and does not offer a defence against the payment order, the debt enforcement process may be taken further. The debt enforcement office does not examine whether or not the claim in question is correct and legitimate. As soon as the payment order is issued, the debt enforcement process is entered in the debt enforcement register (see: Are the entries in the debt enforcement and loss certificate register deleted after the payment has been made? and What can I do about an entry in the debt enforcement register regarding an unjustified debt enforcement process?).

The payment order is usually delivered by a postal delivery worker.

(Legal basis: Art. 64 and Art. 69 ff. DEBA)

 

What should I do if I receive a payment order?

If the claim is in fact owed, the debtor should pay the claim within 20 days. If they are not in a position to pay the whole amount at once, the debtor may attempt to reach an agreement with the creditor to pay by instalments (see also: Debt restructuring process). However, if the debtor does not agree with the claim, because it has already been paid, for example, or never existed at all, the debtor will have to dispute the claim. They can do this by filing an objection. The debtor must then file an objection within 10 days of the payment order being issued (see: What is an objection?). If the debtor neither pays the claim nor files an objection, the debt enforcement process may be taken further.

(Legal basis: Art. 69 ff. and Art. 74 ff. DEBA)

 

What is an objection?

An objection is used by the debtor to dispute the claim asserted by the creditor through the debt enforcement process. An objection can be filed against one payment order only, and must be filed within 10 days of the debtor receiving the payment order. The objection can be communicated directly to the person who delivers the payment order, such as the postal delivery worker, or to the debt enforcement office, within 10 days. All that is needed is to write “Objection” on the payment order or cross the relevant box. It is not necessary to give any reason (except in the case of claims arising from bankruptcy: see Private bankruptcy). If the debtor disagrees with only part of the claim, they can file a partial objection regarding the disputed sum. The objection can also be withdrawn at any time, in which case the withdrawal is final. Another objection may, however, be filed in any new debt enforcement process.

(Legal basis: Art. 74 ff. and Art. 88 DEBA)

 

What happens if I file an objection?

If the debtor files an objection against the payment order and the creditor wishes to continue the debt enforcement process, the creditor must apply to the judge for a request for removal (see: What does a procedure for the removal of an objection mean for me?) or launch ordinary civil or administrative proceedings. The creditor has one year in which to do so, starting from when the payment order was issued. For as long as the creditor is inactive, the debt enforcement process is suspended and does not continue. However, the debt enforcement process continues to appear in the debt enforcement register (see: Are the entries in the debt enforcement and loss certificate register deleted after the debt enforcement process? and What can I do about an entry in the debt enforcement register regarding an unjustified debt enforcement process?). If the debtor has filed an objection against only part of the claim (partial objection), the debt enforcement process is suspended for this part of the claim only.

(Legal basis: Art. 74 ff. and Art. 88 DEBA)

 

What can I do if I have forgotten to file an objection?

If the debtor does not file an objection, the creditor can demand the continuation of the debt enforcement process. This then leads to distraint (see: When does distraint occur and what does it mean?). However, if the debtor disputes the claim, they still have the option of filing an appeal with the court to halt the debt enforcement process. If the debt enforcement process has been concluded with the result that a claim that was not owed has been paid, the payment can be reclaimed by means of a restitutionary action.

(Legal basis: Art. 85, 85a, 86 and 88 DEBA)

 

What does a procedure for the removal of an objection mean for me?

If the debtor has filed an objection and the creditor wishes to continue the debt enforcement process, the creditor must apply to the judge. The creditor either files an appeal in ordinary civil or administrative proceedings or they instigate a procedure for the removal of the objection. The party that loses bears the costs of the proceedings. In the event of an objection, creditors usually instigate a procedure for the removal of the objection. During the procedure for the removal of the objection, the debtor is given an opportunity to state why the claim does not exist, or is for less than the amount claimed. All the necessary evidence must be produced. Certain courts hold an oral hearing with or without a prior exchange of documents, whereas other courts require communication in writing only. If the creditor's request for removal is rejected, the debt enforcement process is halted. If the request for removal is approved, the creditor can demand that the debt enforcement process continues.

(Legal basis: Art. 79 ff. DEBA).

 

Can I do anything about the decision on the removal of the objection?

An appeal may be lodged within 10 days against the decision on the removal of the objection. However, the only grounds for appeal are incorrect application of the law and apparent incorrect ascertainment of the facts of the case. This means that the decision on the removal of the objection can be reviewed only to a limited extent.

If the debtor disputes the claim but the decision on the removal of the objection nevertheless goes against the debtor, the latter is recommended to instigate ordinary court proceedings and file an action to have the claim declared unfounded. The debtor has 20 days in which to do so, starting from the date of the decision on the removal of the objection. Conversely, if the request for removal is rejected, the creditor also has the option of instigating ordinary court proceedings by means of an action for the recognition of a claim. The party that loses bears the costs of the proceedings.

(Legal basis: Art. 79 and 83 DEBA, Art. 309 lit. b clause 3, Art. 319 f. and Art. 321 para. 2 Civil Procedure Code (CPC))

 

What is the special position of the health insurance funds if the debtor’s objection is overruled?

A health insurance fund can issue a decree that overrules the debtor’s objection. It does not need to go to court to do this. In order to do this in a legally correct manner, however, the health insurance fund must issue the debtor with an order requiring the debtor to pay money to the health insurance fund; this is in addition to the decree that overrules the objection. The debtor may appeal against the decree which requires them to pay.

 

When does distraint (seizure) occur and what does it mean?

If the debtor has not filed an objection, or if the objection has been overruled by the court and the court has not halted the debt enforcement process, the creditor can ask the debt enforcement office to continue with the debt enforcement process. The creditor has one year in which to do this, starting from the date when the payment order was issued. However, this deadline is suspended while a court action is in progress.

On receipt of a request to continue debt enforcement proceedings, the debt enforcement office takes action to distrain (seize) property. Distraint means that the debt enforcement office seizes assets (items of value, real estate etc.) in order to liquidate them and use the proceeds to pay the claims of the creditors who instigated the enforcement process. A certain proportion of the debtor's income can also be distrained (attached). Distraint (attachment) of income means that part of the income must be delivered to the debt enforcement office so that it can be used to settle the claims being enforced. The debt enforcement office officially clarifies what can be distrained. The debtor must be present at the distraint and provide truthful information about their income and assets. The debtor has no further authority to dispose of the distrained assets.

(Legal basis: Art. 88 ff., Debt Enforcement Bankruptcy Act (DEBA))

 

What can be distrained (seized)?

It is possible to distrain items that belong to the debtor and constitute assets that can be liquidated. This may be real estate, jewellery, paintings, cash and/or income. However, not everything that constitutes an asset may be distrained. Items which the debtor and their family need in order to live may not be distrained. Items such as household equipment, furniture etc. may not be seized if they are essential to the debtor and their family. Items including those required by the debtor in order to carry out their work may not be seized, either. The car, for example, may not be seized if the debtor or their family rely on the car for professional and/or health-related reasons. Nor is it possible to distrain social welfare payments or benefits from the Family Allowances Office, an old age, survivor’s or invalidity pension (1st pillar) or supplementary benefits. Payments made in compensation for physical injury, health problems or death cannot be distrained, either. It is only possible to distrain (attach) the portion of income that is not absolutely necessary for the debtor and their family (see: What is an attachment of income and what is the minimum subsistence level (MSL) under debt enforcement law? and How is the minimum subsistence level (MSL) under debt enforcement law calculated?).

(Legal basis: Art. 92 ff., Debt Enforcement Bankruptcy Act (DEBA))

 

What is an attachment of income and what is the minimum subsistence level (MSL) under debt enforcement law?

When assets are distrained, an attachment of income order is often made. This means that part of the income must be delivered to the debt enforcement office (see: How long does an attachment of income order last?). However, the debt enforcement office may only distrain that portion of the income which is not absolutely required by the debtor and their family in order to be able to live. The amount that the debtor and their family need in order to be able to live is known as the minimum subsistence level (MSL) under debt enforcement law. The debt enforcement office may only distrain the amount which exceeds this MSL (see: How is the minimum subsistence level (MSL) under debt enforcement law calculated?).

(Legal basis: art. 93 DEBA)

 

How is the minimum subsistence level (MSL) under debt enforcement law calculated?

Each canton has its own guidelines on how the MSL is calculated. The calculation leaves some scope for discretion. It is consequently necessary to consider each canton individually to find out how the calculation is made. The following guidelines offer a rough outline of approximately how the MSL is calculated.

Guidelines of the debt enforcement and bankruptcy offices of Switzerland (PDF) (only available in German)

In general, the MSL consists of a basic amount (for food, clothes, body care, pets etc.), as well as rent and ancillary costs, health insurance premiums, the cost of travelling to work and meals taken outside the home while working. Alimony payments are also taken into account when calculating the MSL. Current taxes are not included in the MSL. In addition, the debt enforcement office can reduce the amount of rent allowed in the calculation, as of the next notice date, if the rent is excessive. Costs that are not paid by the debtor are not included in the calculation. If health insurance premiums or alimony payments, for example, are not being paid, they are not included in the MSL calculation. If the debtor starts paying health insurance premiums or alimony payments again, however, they can claim this amount by presenting the receipt to the debt enforcement office. If higher necessary expenses arise, such as for medical appointments, medication or the birth of a child, the debt enforcement office must be informed and these expenses must be taken into account when calculating the MSL.

(Legal basis: art. 93 DEBA)

 

What can I do if I don't agree with the way the minimum subsistence level (MSL) is calculated under debt enforcement law?

If the debtor does not agree with the way the MSL is calculated, they may lodge an appeal within 10 days of receiving the MSL calculation; this should be submitted to the supervisory authority of the debt enforcement and bankruptcy offices in the canton concerned. Before this deadline expires, it may sometimes be advisable to contact the debt enforcement office again to try to reach an amicable agreement. However, the 10-day deadline must not be missed under any circumstances. The debtor is not bound to the 10-day deadline if the MSL calculation is invalid. They can then lodge an appeal at any time. However, for the calculation to be invalid it must contain a serious error which has a substantial impact on the MSL. The appeals process is free of charge, provided that the debtor is not lodging the appeal maliciously or wilfully.

(Legal basis: Art. 17 ff., Debt Enforcement Bankruptcy Act (DEBA))

 

How long does an attachment of income order last?

An attachment of income order lasts for one year. If the claim has been paid only partially, or not at all, by means of the debt enforcement process, the creditor is issued with a certificate of unpaid debts in distraint proceedings (see: What is a certificate of unpaid debts in distraint proceedings?). If the claim has been pursued in a debt enforcement process for the first time, and a certificate of unpaid debts has been issued as a result of this initial process, the creditor can continue the debt enforcement process for another year without the need for a new payment order. However, in every subsequent debt enforcement process, the creditor must instigate the process in the normal way once again, and the debtor will receive a payment order and will be able to file an objection.

(Legal basis: Art. 93 and 149 DEBA)

 

Will my employer find out that I am subject to distraint proceedings?

If the salary is distrained (attached), the employer will be informed of the distraint by the debt enforcement office. The employer is required to pay out to the debt enforcement office the portion of the salary that exceeds the minimum subsistence level (MSL) under debt enforcement law (see: What is an attachment of income and what is the minimum subsistence level (MSL) under debt enforcement law? and How is the minimum subsistence level (MSL) under debt enforcement law calculated?).

(Legal basis: Art. 99 DEBA)

 

Can I prevent my employer finding out about the attachment of earnings?

It is possible to prevent the employer finding out about the attachment of earnings. This is known as “silent attachment of earnings”. However, the debt enforcement office may decide at its own discretion whether to implement a silent attachment of earnings. The debtor is not entitled to prevent the employer from finding out about the attachment of earnings. For a silent attachment of earnings to be considered by the debt enforcement office, it is usually necessary for the debtor’s continuing employment to be jeopardised by the distraint, for all the creditors to agree with the silent attachment of earnings, and for it to be credible that the debtor will pay the amount exceeding the minimum subsistence level under debt enforcement law each month directly.

 

What is a certificate of unpaid debts in distraint proceedings (loss certificate)?

When the debtor is pursued for debt and distrained, and yet at the end of the distraint period the claim asserted by the creditor has not been paid, or has not been paid in full, the creditor receives a certificate of unpaid debts in distraint proceedings (loss certificate). This states how much of the claim remains to be paid. This certificate of unpaid debts in distraint proceedings expires after 20 years, but can be interrupted for reasons including new debt enforcement processes or acknowledgement of debt. This means that the expiry deadline starts again from the beginning. If a certificate of unpaid debts has been issued, no further interest payments and/or other costs may be charged in relation to the claim.

(Legal basis: Art. 149 and 149a DEBA and Art. 127 ff. Code of Obligations (CO))

 

Are the entries in the debt enforcement and loss certificate register deleted after the payment has been made?

The debt enforcement processes and loss certificates are entered in a register maintained by the debt enforcement office.

A debt enforcement process can be viewed in the register by third parties for up to five years. Earlier deletion of a debt enforcement process from the register can only be obtained if the creditor withdraws the debt enforcement process, or if a court issues a ruling that cancels the debt enforcement process, or rules that the claim is invalid. The debt enforcement process is not deleted from the register when the debtor pays the claim. It is therefore recommended that before paying the claim, the debtor requests the creditor in writing to withdraw the debt enforcement process and allow it to be deleted from the debt enforcement register free of charge, once the claim has been paid. However, the creditor cannot be forced to do this.

A loss certificate is deleted from the register when it has been paid or has expired (see: What is a certificate of unpaid debts in distraint proceedings (loss certificate)?). In order for the paid loss certificate to be deleted, the debtor must prove to the debt enforcement office that they have paid the relevant amount. This can sometimes present difficulties. To be on the safe side, we therefore recommend that before paying the loss certificates, the debtor agrees with the creditors in writing that the creditors will give receipts for the loss certificates after payment and return the originals to the debtor or the debt enforcement office free of charge.

 (Legal basis: Art. 8a and 149a f. DEBA)

 

What can I do about an entry in the debt enforcement register regarding an unjustified debt enforcement process?

To ensure that a debt enforcement process for a claim that is not owed can no longer be viewed by third parties in the debt enforcement register, the debtor can do the following:

  • The debtor must have filed an objection to the payment order.
  • The creditor has not countered the objection.
  • Three months have passed since the payment order was issued.
  • At the end of the three months, the debtor applies to the debt enforcement office for the relevant debt enforcement entry in the register to be removed from the view of third parties. The debtor must pay CHF 40 for the application.
  • As a result of this application, the debt enforcement office gives the creditor a deadline of 20 days in which to prove that a procedure to remove the objection has been instigated.
  • If the creditor is unable to present this proof and does not instigate a procedure within 20 days, the debt enforcement entry will no longer be visible to third parties.
  • However, if the creditor presents evidence, even after the 20day deadline, of having instigated a procedure for the removal of the objection, third parties will again be able to view the debt enforcement process.
  • If the debtor pays the claim, they cannot apply to have the relevant entry in the debt enforcement register removed from the view of third parties.

(Legal basis: Art 8a DEBA, Art. 12b Fees Ordinance to the Federal Act on Debt Collection and Bankruptcy (FeeO-DCBA))

 
 

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