Facts
Z. initiated debt collection proceedings against Y. for the amount of CHF 1,300,000.--. After the payment order of the Debt Collection Office Thalwil was served on the debtor Y., the latter raised an objection and filed a claim with the District Court of Horgen based on Art. 85a DEBA, requesting a declaration that the claim being enforced does not exist and that the debt collection proceedings were initiated without a valid claim.
The Cantonal Court of Zurich instructed the single judge to hear the counterclaim. The defendant appealed against this to the Federal Supreme Court, requesting that the claim not be heard.
Considerations
The Federal Supreme Court held that the declaratory action under Art. 85a DEBA can only be filed after the objection has been definitively removed, up until the distribution of the proceeds of realization or the opening of bankruptcy proceedings. As long as the objection has not been definitively removed, the debt collection proceedings remain suspended by law.
The Federal Supreme Court justified this by stating that the legislator, with the introduction of Art. 85a DEBA,…