Dismissal of the complaint against the rejection of a debt collection request

Facts

The [A. AG] (appellant) filed a debt collection request against the debtor [B.] with the Debt Collection Office Zurich 3 on 24 March 2016. The Debt Collection Office rejected the request because the debtor had moved away from the specified address and his new address was not known to the office. The appellant lodged a complaint with the District Court of Zurich and requested that the payment order be served by public notice. The District Court partially upheld the complaint and instructed the Debt Collection Office to give the appellant the opportunity to improve the debt collection request. The appellant then lodged a complaint with the High Court of the Canton of Zurich, which dismissed the complaint. The appellant subsequently lodged a complaint in civil matters with the Federal Court.

The appellant requests that the judgment of 3 August 2016 be set aside and that the Debt Collection Office be instructed to accept the debt collection request and serve the payment order by public notice. The Federal Court has obtained the files but has not solicited any statements.

Considerations

The Federal Court has examined the admissibility of the complaint in civil matters and found that it is directed against a decision of the higher supervisory authority in debt collection and bankruptcy matters and is therefore admissible (Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. c, Art. 75, Art. 76, Art. 90, Art. 100 para. 2 lit. a FSCA).

The court has dealt with the question under what circumstances it can be assumed that the debtor's place of residence or domicile is unknown and what investigative efforts can be required of a creditor in this regard. It has found that the public notice (Art. 66 para. 4 no. 1 DEBA) does not establish a debt collection venue, but rather such a venue is presupposed according to Art. 46 ff. DEBA, so that a public notice may be made if necessary.

The High Court has rightly assumed that the debtor can still be sued at his old place of residence if his current place of residence and current domicile are unknown (BGE 120 III 110 E. 1 S. 111 ff.). The court has also found…