Kaiser Odermatt and Partner AG – represented by Alexander Kyburz – successfully defended a customer before the Higher Court of the Canton of Zurich, because the competent district court wanted the assertion of a legitimate collection claim to fail due to alleged formal defects.
The district court did not accept the request for the opening of justice. It found that the continuation of the debt enforcement without legal opening proceedings at the debt enforcement office should be initiated with the loss certificate laid down in the law. Accordingly, there is a lack of interest in legal protection, which is why the legal opening procedure should not be entered into.
The Higher Court rightly stated that although every seizure loss certificate from a debt enforcement initiated by a payment order allows the creditor to continue the debt enforcement without a new payment order, this does not apply if a loss certificate from a debt enforcement pursuant to Art. 149 (3) SchKG already exists times continued operation.
If a renewed seizure, based on a request under Art. 149 Para. 3 SchKG, again leads to a loss certificate, this second loss certificate no longer entitles the holder to demand continuation without an order for payment and the legal proceedings must be initiated if the debtor makes a legal proposal. With the decision not to act, the legitimate interests of the customer were unlawfully choked off by means of a "short process".