Facts
Parties and procedural history:
The complainant (creditor) [A.] challenges the order of the enforcement office of Emmen dated 1 December 2023, by which it was ordered to repay a total of CHF 12,586.75. These amounts had been erroneously paid as advance payments in enforcement proceedings No. yyy, although the enforcement had been provisionally discontinued pursuant to a super-provisional protective measure decision of the District Court of Hochdorf dated 1 April 2019. Pending before the District Court of Hochdorf is a negative declaratory action (1A3 19 5) in which the enforcement debtor [B.] seeks a declaration that it does not owe the amount of CHF 238,000.-- placed in enforcement. The enforcement office had provisionally discontinued enforcement proceedings Nos. xxx and yyy, but the District Court lifted the discontinuation on 8 August 2023, while the Cantonal Court of Lucerne upheld [B.] ’s appeal against this lifting with a decision dated 20 November 2023. The Federal Supreme Court did not enter the complaint filed by [A.] against this with judgment 4A_619/2023 dated 28 February 2024.
Procedural history:
[A.] filed a complaint with the District Court of Hochdorf against the enforcement office’s order on 15 December 2023, which was dismissed by a decision dated 25 January 2024. Against this decision, [A.] filed a complaint with the Cantonal Court of Lucerne on 5 February 2024, which dismissed the complaint with a decision dated 8 October 2024. [A.] then filed a civil law appeal with the Federal Supreme Court on 28 October 2024, seeking to set aside the cantonal decision and the enforcement office’s order. The Federal Supreme Court granted the appeal suspensive effect with a presidential order dated 10 December 2024. The enforcement debtor [B.] submitted late submissions and later waived further participation in the proceedings for reasons of procedural economy.
Considerations
Admissibility of the appeal: The Federal Supreme Court examines the civil law appeal and notes that it is admissible pursuant to Articles 72(2)(a), 74(2)(c), 75, 76, 90 and 100(2)(a) FSCA. The complainant argues that the enforcement office was not authorised to order the recovery of the erroneously made advance payments by way of an order.
Legal qualification of the recovery: The Federal Supreme Court clarifies that while the enforcement office may, pursuant to Article 144(2) DEBA, make advance payments only in valid enforcement proceedings CO their continuation, this provision does not expressly authorise the recovery of payments made in error. Article 266 DEBA, which governs advance distributions in bankruptcy, also contains no such provision. The Federal Supreme Court’s consistent case law (see BGE 59 III 213 para. 3; 53 III 214 para. 3; 44 III 85 para. 1; judgment 5A_837/2018 of 17 May 2019 para. 3.4) emphasises that the enforcement office has no power of disposal when seeking to recover an amount paid in error by a creditor CO a third party. Such a demand by the enforcement office has no greater legal effect than a private payment demand and does not constitute an order within the meaning of Article 17 DEBA.
Legal protection in the event of non-repayment: The Federal Supreme Court states that in the event of non-repayment of the erroneously made payments, the enforcement office must resort to the legal remedy of unjust enrichment (Arts. 62 et seq. CO). A claim before the ordinary courts is the only permissible way to enforce repayment. The enforcement office’s chosen approach of using an…