Attorney Judith Andenmatten has successfully supported a creditor in an opposition proceeding. This concerned the deprivation of a third party claim to a seized asset.

In opposition proceedings, debtors and third parties can claim that the seized asset does not belong to the debtor but to a third party, which is why it should be withdrawn from the seized order.  Since the debt collection officer does not examine the claim as such, but only receives the objection, this claim is often the subject of an opposition proceeding in court.  Decisive for the further course of the proceedings is who has factual control over the object.  This is because the court procedure differs depending on whether the debtor or the third-party claimant  has custody of the asset in question. For the third party it is sufficient that he has joint custody.

The present case specifically concerned the seizure of these vehicles all of which were found and seized at the debtor’s home. The debtor’s housemate then asserted a third party claim and claimed that the three vehicles in question were in his sole ownership. Because the housemate, as a third party claimant, had joint custody of the addressed asset, the creditor had to file a claim with the court within 20 days to have the property established. Only the third party (housemate) and the creditor were parties to the proceedings. The debtor was not involved in these proceedings and could only testify as a witness to whom the vehicle belonged.

In principle, the legal presumption applies that a proprietor of a movable object is also its owner. However, this presumption can be refuted. The proof of ownership of vehicles was not clear in the present case, as the third party and the debtor lived in a shared apartment. Although the vehicle registration was used to prove the housemate’s possession of it, there were still doubts about the third party claimant’s exclusive right of possession. The main question was why neither the debtor nor the third party (his housemate) could not provide any evidence that would clearly prove the ownership of the vehicles. In principle, the documents such as purchase contracts and receipts for payment of the purchase price or tax documents from the third-party claimant would suffice. The requirement of the vehicle registration document is not clear on the question of ownership and therefore unsuitable for its proof. The creditor therefore vehemently contested the third party claim (of the housemate) to ownership of the vehicles in question. In particular, there was a presumption in the present case that this was a subsequently constructed fictitious transaction (so-called protective assertion) in order to deprive the aforementioned vehicles of the seizure order.

On the occasion of the court proceedings, the fictitious transaction was then uncovered in the main hearing and it turned out that the third-party claimant did not own the vehicles in question despite the submitted documents. As a result, the proceedings were concluded in favor of the creditor and at the expense of the third party claimant. The three vehicles remained subject to the attachment of the debtor.

The objection of a third party claim of a housemate only makes sense if the ownership of an object can be proven without any gaps. On the other hand, when fictitious transactions are constructed, it is to be expected that this will be refuted in the evidence proceedings of the main trial, which ultimately only leads to considerable costs for the third party claimant who is actually not involved in the debt enforcement proceedings. Accordingly, the objection of a third party claim cannot be raised lightly. It is also advisable for the creditor to have the third party claims determined by a court.