Prior to initiating legal action
As in any other system, the best way to begin the debt collection process is to contact to the debtor by phone or by sending a demand letter, or a reminder. If the debtor has not paid his or her debt in time a letter written by a lawyer can be most effective.
However, if the debtor remains silent or denies outright owing
anything, one must determine wheter the debt is:
based on a contract;
based on a written acknowledgment of debt;
or is supported by a court judgement.
Also, it is important to determine whether the debt might soon become barred by prescription. If prescription is imminent, you may request and enforcement proceeding in writing (or orally) at the debt enforcement office within the area of the debtor's domicile. The office will serve the summons to pay. Even without continuing the process, doing so interrrupts the prescription period, and it will run again for its full length.
Debt Enforcement Based Upon a Court Judgment
If your claim is based on an enforceable court judgment, the objection that any debtor may file within seven days after receipt of the summons will be set aside before a low court in a summary proceeding, unless the debtor can prove documentation that since judgment was rendered, the debt has been discharged or deferred, or can successfully invoke the statute of limitations.
Debt Enforcement Based Upon a Recognition of Debt
If, on the other hand, the claim is based on a recognition of debt contained in a notarized deed or, which is more often the case, in a signed private document, the creditor may request that the objection filed by the debtor be removed provisionally.
For this purpose, a recognition of debt is not only a formal IOU ("I Owe You"). It can exist in various forms, such as a signed order for goods, a rental contract, or any sort of document signed by the debtor in which he or she undertakes to pay a certain, at least determinable, amount of money. In the case of rental agreements, delivery orders, or other bilateral contracts, the creditor must satisfy the court that he or she has fulfilled his or her part of the obligation and is consequently entitled to ask for the other party's performance.
The court will set aside the objection unless the debtor immediately shows prima facie that he or she has a defense which controverts the recognition of debt.
If the court sets aside the objection provisionally, the debtor can, in an ordinary court proceeding, bring an action requesting that the claim be declared unfounded. If no action is brought or if it is dismissed, the objection is set aside permanently, and any provisional seizure becomes definite.
Should the request to set aside the objection be provisionally dismissed, or should the creditor have no written recognition of debt, the debt collection process starts with the commencement of ordinary proceedings before the court, in which each party lays down its opinion in a detailed statement. When no settlement can be reached, the plaintiff (i.e., the creditor) usually asks the Justice to make a decision which allows him or her to continue the procedure.
Evidence proceedings (in practice), will start after the first hearing in court or after both parties have exchanged written statements. Based on the allegations of fact, the court will decide what has to be corroborated by evidence proceedings, the court will render his judgment.
When the judgment becomes final, the creditor may collect the debt with the help of the enforcement office as previously outlined.
Proceedings Regarding The Seizure of Assets
If the aforementioned enforcement proceedings
have not been stayed by an objection or,
an objection has been set aside by a judgment,
the creditor may request continuation is filed with the enforcement office and will be served immediately to the debtor. Under threat of sanctions, the debtor has to be present at the seizure and has to disclose all of his or her possession. The debtor is prohibited by law from disposing of seized assets without the consent of the enforcement officer. At the same time, income may be seized to the extent that it is non-exempt.
The request to liquidate seized assets, claims, and other rights may be filed in one year after seizure (2 years for immovable properties).
Each member within a group of creditors is entitled to request
the liquidation of assets, which will normally take place in a
public auction. However, assets may be disposed of by private sales
if all parties concerned so agree.
Each creditor will receive a certificate of shortfall for the unsatisfied portion of his or her claim. The certificate is equivalent to a recognition of debt and entitles the creditor to a request for continuation without initiating enforcement proceedings. The claim evidenced in the certificate will only become barred by statute after ten years.
Attachment / Freezing Orders
The creditor may apply for an attachment if:
the debtor has no fixed domicile,
is shown to be concealing his or her assets,
Finally, a creditor can apply for an attachment if he or she holds a provisional or definite certificate of shortfall against the debtor.
The creditor is liable to the debtor for damages suffered as a result of an unjustified attachment. Consequently, the court is empowered to ask for securites prior to issuing an attachment order.
The debor can file objections against this attachment order.
If no debt collection enforcement proceedings (as described earlier) are underway, the creditor must initiate them within ten days after receipt of the freezing (attachment) order document.
The attachment will be revoked, or will become ineffective if the creditor does not respect the deadlines for the validation of the attachment order.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.