Introduction
In Switzerland, the enforcement procedure is driven by the initiative of the creditor, who must be active at all stages of the procedure. The enforcement begins with a request for debt collection submitted by the creditor to the debt collection office at the debtor's place of residence (Art. 46 para. 1 DEBA). This is a very simple process, generally involving the submission of a simple form. Upon receipt of the request for debt collection, the office drafts a payment order (Art. 69 DEBA), without the creditor needing to prove the existence of the debt. Upon notification of the payment order to the debtor, the latter can immediately file an objection against the payment order (Art. 74 DEBA). At this stage, the debtor is also not required to justify their objection (Art. 75 para. 1 DEBA), at most needing to mention, if applicable, that they contest their financial recovery (Art. 75 para. 2 DEBA).
There is thus a symmetry between the procedural obligations of the creditor and the debtor, allowing them to respectively initiate and block the enforcement procedure without any production of evidence. The debtor's objection suspends the enforcement entirely (Art. 78 para. 1 DEBA) or partially if the debtor only objected to part of the amount for which they are being pursued (Art. 78 para. 2 DEBA). It is at this stage of the procedure, and to be able to annul the debtor's objection, that the procedure for the lifting of the objection comes into play.
Lifting of the Objection
To continue the enforcement procedure, the creditor must file a request for the lifting of the objection before the court of the place of enforcement (Art. 80 para. 1, 82 para. 1, 84 para. 1 DEBA), in which they prove the existence of their claim by title. During the lifting procedure, the judge does not examine the merits of the claim but only the existence of a title allowing the continuation of the enforcement. Upon receipt of the request, the judge gives the debtor the opportunity to respond orally or in writing (Art. 84 para. 2 DEBA). However, only documentary evidence is admitted, both for the debtor and the creditor.
Definitive Lifting
The creditor who holds an enforceable judgment can request the judge to definitively lift the objection (Art. 80 para. 1 DEBA). According to Art. 80 para. 2 DEBA, judgments are assimilated, notably judicial settlements or acknowledgments (ch.1) - such as divorce agreements -, or Swiss administrative decisions (ch.2) - such as tax decisions.
In the presence of a title for definitive lifting, the judge pronounces the definitive lifting unless the debtor proves by title that the debt has been extinguished, that they have obtained a stay, or that they claim the statute of limitations (Art. 81 para. 1 DEBA). The debtor can also invoke the set-off of their debt with a claim in their favor if they prove its existence by title.
If the definitive lifting is granted, the creditor can then request the continuation of the enforcement.
Provisional Lifting
The provisional lifting procedure allows the creditor with an acknowledgment of debt to provisionally lift the debtor's objection to proceed with a provisional seizure or inventory (Art. 83 para. 1 DEBA).
The acknowledgment of debt, understood in the sense of Art. 82 para. 1 DEBA, is a signed document indicating that the debtor intends to pay the creditor a specified amount unconditionally. Such an acknowledgment can also result from several documents, provided the necessary elements are present. A number of contracts - including sales or lease contracts - and certificates of loss of property can also constitute titles for provisional lifting.
In the provisional lifting procedure, the debtor is not required to provide strict proof of their release, unlike the creditor (Art. 82 DEBA). Thus, if they make their release plausible and credible by title, the judge does not pronounce the lifting of the objection. The debtor can, for example, raise the extinction of the debt, the set-off, or the irregularity of the enforcement.
If the creditor obtains the provisional lifting of the objection, the debtor can still file an action for release from debt (Art. 83 para. 2 DEBA). In the absence of such an action, the lifting, as well as any provisional seizure, becomes final (Art. 83 para. 3 DEBA), and the enforcement can proceed.
Conclusion
In the event of a debtor's objection, a court procedure is indispensable before the continuation of the enforcement can be requested, unless the debtor defaults at the lifting hearing. It is at this point that both the creditor and the debtor must provide evidence - meeting rather strict formal requirements - of their respective claims.
If you wish to obtain further information or need our support regarding enforcement law, do not hesitate to contact the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch) so that we can assist you with your procedures.
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