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The current Debt Enforcement Bankruptcy Act (DEBA) leaves the door wide open to arbitrariness and harassment. The Federal Council is putting an end to this unfairness with an amendment to the law that will come into force on 1 January 2019. It gives the victims of unjustified debt enforcement measures a means to defend themselves and takes the arbitrariness out of the system. This article explains how you can fend off dishonest and even malicious debt enforcement measures.
What a nightmare: someone has initiated debt enforcement proceedings against you and now your name is on the debt enforcement register. Your chances of getting a new apartment or a new job are now slim to non-existent. On the other hand, starting debt enforcement proceedings against somebody is very cheap and easy. All that’s needed is to fill in a form and pay a few francs. Guilt does not even have to be proven.
So it’s hardly surprising that some debt enforcement proceedings are unjustified. To make matters worse, your name stays on the debt enforcement register for five years, even if you’ve submitted a legal objection (“Rechtsvorschlag”).
Although nuisance proceedings tend to be an exception rather than the rule, some people find their lives seriously disrupted by unjustified debt enforcement measures. That will all be history from 1 January 2019.
How to deal with arbitrary enforcement orders:
The new law goes even further than this in assisting recipients of enforcement orders. You can now request creditors to provide detailed evidence of the alleged debt within ten days.
If there is no debt or it has been paid or deferred, you can now ask the court to determine that this is indeed the case. If the court rules in your favour, the debt enforcement office must either delete the entry in the debt enforcement register or withhold the information from third parties.
Art. 8a para. 3d DEBA
The right of third parties to consult the debt enforcement register has been restricted. After a period of three months, the person subject to debt enforcement proceedings may request the debt enforcement office to set the creditor a 20-day deadline to prove that they have initiated legal action to remove the legal objection (“Rechtsöffnungsverfahren”).
Art. 73 DEBA
The person subject to debt enforcement proceedings has the right to at any time request the presentation of proof of the debt claim, including an overview of all the debts that he/she must (allegedly) pay.
Art. 85a para. 1 DEBA
Irrespective of any legal objection, the person subject to debt enforcement proceedings has the right at any time to request the court to determine that the debt does not exist.