Dismissal of motion for distraint

Legal options after dismissal of motion for distraint

If the motion for distraint is dismissed by the judge responsible, the decision can be appealed at the canton’s court (if there this is allowed for in the canton’s procedural code). The success of the redress may be dependant on new evidence. This may or may not be a prerequisite, depending on the canton’s rules of procedure.

If the motion for distraint was dismissed, a new motion may be handed in at any time. The motion may be an adapted version of the first motion but it may also concern different assets and/or facts of the case. However, if the debtor was informed about the dismissal, the advantageous moment of surprise is lost and the success of a later distraint order may be threatened.

Alternative possibilities

If no distraint order can be obtained, other legal measures may be applied. However, it is a disadvantage of these measures, that they may be applied only at a later stage. Additional prerequisites for such measures are that either the debtor’s property was already seized or that the debtor is subject to bankruptcy proceedings.

In such a case the following disposals (by contract) which the debtor has decreed a year or less before the seizure or before the bankruptcy proceedings respectively, may be appealed against:

  • Donations
  • Disposals decreed at a point of an already existing over-indebtedness.

If a disposal was intentionally decreed in order to cause prejudice to the interests of a few or all creditors or to prefer some creditors over others, actions of up to five years prior to the seizure or to the bankruptcy proceedings are open to appeal.

Under these circumstances, the creditor may make use of criminal proceedings. These may not lead directly to the satisfaction of claims, but they can be used as means to clarify the actual circumstances and they may add pressure.

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