If provisional setting aside of an objection has been granted to the creditor in the enforcement process, the debtor can prevent the continuation of the enforcement by successfully filing an action for release from the debt. The creditor’s claim is examined for its validity and scope in the proceedings.
Prerequisite
The denial action is only available to debtors who have been unsuccessful in the provisional setting aside of the objection process. An action for release from the debt against decisions regarding definitive enforcement is not possible.
Deadline
The denial action must be filed within 20 days after the decision on setting aside the objection (art. 83 para. 2 DEBA). The deadline is calculated from the issuance of the decision on setting aside the objection. These decisions are usually communicated in writing, which means the deadline is calculated from the date of delivery.
Failure to meet the deadline results in the right to file an action for release from the debt being forfeited in the respective enforcement. In such cases, the debtor may potentially have the option of a restitution action (art. 86 DEBA) or possibly an action to establish the non-existence of the claim (art. 88 CPC).
Jurisdiction and Procedure
A conciliation procedure is not applicable for the denial action (art. 198 lit. e Ziff. 1 CPC).
The court at the place of enforcement has jurisdiction (art. 83 para. 2 CPC). The material jurisdiction varies according to cantonal regulations.
The procedure is conducted as a simplified procedure for dispute values up to CHF 30’000.00, while for higher dispute values, the ordinary procedure applies (art. 243 CPC).
Party Roles
In an action for release from a debt, the debtor is the plaintiff, and the creditor is the defendant. The usual roles of the parties are reversed. The debtor files a claim to establish the non-existence of the claim.
For the debtors, this reversal of roles entails a certain disadvantage, as they cannot simply contest the claim but must actively initiate the denial action and lead the process.
Allegations and Burden of Proof
Despite the reversal of party roles, the burden of allegations and proof regarding the existence and extent of the claim remains unchanged. The creditor must still prove the facts from which they derive the existence, maturity, and extent of their claim (BGer 5A_726/2016, E.3.1; BGE 130 III 285, E.5.3.1; BGE 95 II 617, E.2).
It is the debtor’s responsibility to assert and prove that the claimed debt does not exist.
Subject and Effect
The subject of the procedure is the existence, extent, and maturity of the creditor’s claim.
As such, the procedure has not only an impact within the respective enforcement but also substantive legal effects.
If the debtor is unsuccessful in the action for release from the claim, the creditor’s claim is definitively established and the provisional setting aside of the objection becomes definite. The creditor can file a continuation request.
If the debtor succeeds in the denial action, the court determines that the claim does not exist. The creditor cannot file a continuation request in the respective enforcement.
