Post distraint order Action

Means of defence for the debtor

Since distraint orders are sustained without consultation of the debtor, the debtor is allowed to appeal the court ruling, however, only after execution of the distraint order.

The appeal is to be handed to the judge responsible within 10 days after the debtor has received notice of the distraint order. Usually, the deadline applies as of the issuing of the distraint order certificate. It may start earlier, if it can be proved that the debtor was informed about the distraint order elsewhere and before this time.

In case the decision is sustained, it is possible to appeal at second instance against the decision taken at first instance. Finally, the decision may be overruled at last instance by the federal court.

Apart from the appeal, a debtor may also make use of a complaint (according to art. 17 SchKG) which enables the debtor to appeal mainly against errors in the proceedings.

Duties of applicant (validation)

The execution order is a preliminary measure which is no longer valid, if the creditor does not take further action. After a distraint order certificate is obtained, the creditor has to bring action against the debtor (validation) within 10 days. If legal proceedings are not instituted against the debtor, the distraint order certificate looses its validity after the deadline.

If the creditor already brought action against the debtor before obtaining a distraint order and the debtor has officially objected to the claim, the creditor has to apply for court action within 10 days.

The brevity of this deadline may be problematic to the creditor. At this point in time it is often uncertain, if the debtor is in possession of any significant assets. A third party acting as a safe keeper of the debtor’s assets (e.g. a bank) is only obliged to inform about the particulars of the assets after the deadline for the debtor (to file an objection) has expired or after the decision about the appeal is legally binding.

Position of third parties

Third parties may have the right to appeal like the debtor. This may be the case, if assets of a third party are subject to the distraint order. If the appeal of a third party is dismissed, the third party may take further action with so called objection proceedings. These proceedings serve to establish the rightful owner of the object seized, without any restrictions on possible means of evidence.

Third parties may also make use of a complaint (according to art. 17 SchKG) to defend themselves against the execution of a distraint order.

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