Nullity of the notification of the payment order

Facts

On 31 May 1994, the debt collection office of S. issued a payment order against R. K. The latter complained to the cantonal supervisory authority for debt collection and bankruptcy, arguing that he had never received the payment order and had therefore not been able to file an objection. While the cantonal authority dismissed the complaint, the Debt Collection and Bankruptcy Chamber of the Federal Supreme Court upheld the appeal against this decision and annulled the payment order.

Considerations

According to case law, the debt collection office has the burden of proof for the proper notification of debt collection acts. To this end, Art. 72(2) DEBA provides that the agent responsible for the notification must certify the date and the recipient of the notification. This certificate is presumed to be accurate, subject to proof to the contrary.

In the present case, the payment order does not contain the mention of the date and the recipient of the notification, as required by Art. 72(2) DEBA. It is not admissible for the debt collection office agent to merely certify the notification and…