Kaiser Odermatt and Partner AG – represented by Alexander Kyburz – successfully defended a client before the High Court of the Canton of Zurich because the competent district court wanted to prevent the assertion of a legitimate debt collection claim based on alleged formal defects.
The district court did not accept the petition for legal proceedings. It determined that the loss certificate, which was placed in the law, would allow the continuation of the debt collection without a legal opening procedure at the debt collection office. The interest in legal protection was therefore lacking, which is why the opening of legal proceedings could not be accepted.
The High Court rightly stated that, although every attachment loss certificate from a debt collection initiated by payment order allows the creditor to continue the debt collection without a new payment order, this does not apply if a loss certificate from a debt collection already continued pursuant to Art. 149 para 3 SchKG.
If a new attachment, based on a request pursuant to Art. 149, para. 3 SchKG, again leads to a certificate of loss, this second certificate of loss no longer entitles the creditor to demand continuation without payment order and, in the case of legal proposal by the debtor, legal opening proceedings must be initiated. With the decision not to proceed, the legitimate interests of the customer were thus illegally stifled by means of a “short trial”.