The compulsory collection of debts in Germany by the creditor represents a considerable burden for the debtor concerned, regardless of whether it takes place by way of seizure of assets, compulsory mortgage, compulsory administration, or compulsory auction. Facing these processes can be especially challenging for international companies and individuals unfamiliar with the complexities of German law. However, various legal protections are available to debtors and affected third parties that can mitigate these burdens.
At Schlun & Elseven Rechtsanwälte, our German lawyers will be happy to explain to you what options are open to you as a debtor and will represent you in asserting your rights and interests. Regardless of whether your case involves a reminder of enforcement, an action to defend against enforcement, a third-party action or an immediate appeal – our legal team will support you with their expertise to ensure that your rights as a debtor or third-party are protected. Our team is committed to providing tailored legal solutions to safeguard your rights in this complex legal landscape.
Please do not hesitate to contact us directly to benefit from our legal expertise.
Legal Protection Options: Measures Against Enforcement in Germany
If the necessary requirements for enforcement are met, the creditor has the right to choose the type and manner of enforcement. The creditor does not have to commit to one measure but can carry out various measures in parallel, § 866 (2) ZPO. The debtor, on the other hand, is not defenceless. The following defence measures are available to them – just like a third party:
- Protection against enforcement per § 765a ZPO,
- Reminder against the manner of enforcement per § 766 ZPO,
- Defence against enforcement, according to § 767 ZPO,
- Third-party action against enforcement, according to § 771 ZPO,
- Immediate appeal per § 793 ZPO,
- Action for preferential satisfaction, according to § 805 ZPO.
Enforcement Reminder in Germany
If a provision of enforcement or procedural law in Germany has not been observed or complied with, the enforcement reminder should be considered as a possible legal remedy. Under § 766 ZPO, the enforcement court decides on applications, objections and reminders relating to the manner of enforcement or the corresponding procedure. It is, therefore, an opportunity to take action against formal errors. The attachment of an object that cannot be attached is a classic example of such a procedural error.
Action to Defend against Enforcement
One way to defend against debt collection enforcement in Germany is the action to defend against enforcement or counterclaim for enforcement. The action is directed against the enforceability of the title but not against the enforcement title itself.
According to § 767 (1) ZPO, objections relating to the claim established by the judgment itself must be asserted by the debtor through an action. This refers to objections that only arose after the conclusion of the oral hearing and can no longer be asserted by means of an objection (see § 767 (2) ZPO). Typical objections are, for example, the fulfilment of the claim or a deferral agreement.
The action must be brought before the competent court and duly filed. The court of first instance, i.e. the court that issued the enforcement order, has jurisdiction per § 767 (1) ZPO. The action has been duly brought if it
- is sufficiently specific (see § 253 ZPO),
- enforcement has not yet ended, and
- the plaintiff’s right is asserted in the statement of claim.
Third-Party Action in Germany
Other parties affected by compulsory enforcement also have rights of defence. The third-party action in opposition, according to § 771 ZPO, gives a third party the opportunity to assert their right. This right is related to an item seized from the debtor. For example, if an object that is the property of a third party has been seized, the third party can enforce their right to the object via the action pursuant to § 771 ZPO.
According to § 771 (1) ZPO, the court in whose district the enforcement took place has jurisdiction for the third-party action. The statement of claim must also be properly filed in this case.
Immediate Appeal in Enforcement Proceedings
According to § 793 ZPO, an immediate appeal is admissible against decisions that can be issued in enforcement proceedings without an oral hearing. This means that it is possible to have the court decision reviewed by a higher instance. It should be noted that the appeal is subject to a time limit. Per § 569 (1) sentence 1 ZPO, the immediate appeal must be lodged with the court of enforcement or the regional court within an emergency period of two weeks, unless another period is specified.
Schlun & Elseven: Advice on German Debt Collection and Enforcement Law
Whether you are affected by an enforcement measure as a debtor or a third party in Germany – our debt collection lawyers specialising in German enforcement law will advise you and represent you both in and out of court. We will explain how you can obtain efficient legal protection against the enforcement measure, and if you wish, we can take care of all the formalities required for implementation.
We also support creditors in matters relating to asset seizure and real estate foreclosure in Germany. Whether you want to enforce your rights by registering a security mortgage, foreclosure, or receivership, our enforcement law practice group will advise you and explain the advantages and disadvantages of the individual enforcement measures.
Practice Group: German Debt Collection Law
Practice Group:
German Debt Collection Law
Contact our Lawyers for German Debt Collection and Enforcement Law
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