Irregular service of a payment order and late opposition considered as a full opposition

Facts

Th. and A. L. had a payment order served on B. by the Debt Collection Office of Lausanne-East. Although the service was irregular, the payment order nevertheless reached the debtor B. On November 3, 1993, B. filed a request for late opposition, alleging that he had only become aware of the payment order on November 2, upon his return from abroad. Although B. withdrew this opposition, the Cantonal Court of Debt Collection and Bankruptcy considered that it should be treated as a full opposition to the payment order.

Considerations

The Federal Court ruled that when a payment order, despite a defect in service, nevertheless reaches the debtor, the deadline for filing an opposition begins to run as soon as the debtor has actually become aware of it. In the present case, since the debtor B. became aware of the payment order on November 2,…