Facts

Parties and instances: The appellant [A.] (debtor) was pursued by the City of Zurich, represented by the Verlustscheininkasso (loss certificate collection office), in the debt enforcement proceedings No. xxx of the Betreibungsamt Zürich 4 (Debt Enforcement Office Zurich 4). The prior instances were the Bezirksgericht Zürich (District Court of Zurich) as the lower cantonal supervisory authority and the Obergericht des Kantons Zürich, II. Zivilkammer (Cantonal High Court of Zurich, Second Civil Chamber) as the upper cantonal supervisory authority over debt enforcement and bankruptcy.

Facts:

  • On 18 January 2019 the Betreibungsamt Zürich 4 issued a payment order for a claim of Fr. 820.10 arising from a loss certificate issued in 2014. Service took place on 14 February 2019.
  • A first appeal by the debtor was dismissed by the District Court; the High Court and the Federal Supreme Court were likewise unsuccessful (judgment 5A_882/2019 of 7 November 2019).
  • The debtor did not file an objection (Rechtsvorschlag). On 6 June 2019 the Betreibungsamt carried out the attachment in the debtor's absence and issued a loss certificate for Fr. 1'103.50.
  • The debtor's appeal against the execution of the attachment and the issuance of the loss certificate was dismissed by the lower supervisory authority on 3 December 2019.
  • On 30 June 2020 the Obergericht rejected the request for free legal representation and dismissed the appeal insofar as it was admissible. No costs were levied.

Requests and complaints before the Federal Supreme Court: The debtor disputes the validity of the claim and of the debt enforcement proceedings, complains about the conduct of the attachment and the issuance of the loss certificate, and applies for free legal aid and a legal representative. The Federal Supreme Court did not obtain any written responses.

Disputed issues: (1) nullity of the debt enforcement proceedings due to receipt of social assistance (Art. 22 DEBA, abuse of rights); (2) proper notice of the attachment and deemed service; (3) lawfulness of the issuance of the loss certificate; (4) free legal representation in the proceedings before the upper instance (Art. 29 para. 3 Cst.).

Considerations

Admissibility: Decisions of cantonal supervisory authorities in debt enforcement and bankruptcy matters are subject to appeal in civil matters regardless of the amount in dispute (Art. 72 para. 2 let. a, Art. 74 para. 2 let. c FSCA). The appeal was filed in time (Art. 100 para. 2 let. a FSCA). Complaints concerning the existence of the claim are not admissible, as this is not to be examined in proceedings under Art. 17 ff. DEBA. The principle of specific complaints applies (Art. 95 let. a, Art. 42 para. 2 FSCA).

Nullity due to receipt of social assistance: An abuse of rights under Art. 2 para. 2 CC exists only where the debt enforcement is manifestly pursued for purposes unrelated to enforcement (BGE 140 III 481 consid. 2.3.1). There are no such indications. Recipients of social assistance may hold attachable assets or attachable income. Whether the public body should have waived collection is not a matter for the Betreibungsamt. An examination of the financial circumstances and a refrain from issuing the payment order in case of indigence are not required.

Proper notice of attachment: The service requirement of Art. 34 para. 1 DEBA is a regulatory provision intended to secure proof of notification. It also applies to the notice of attachment. Qualified service (personal delivery) is not required for this. The Betreibungsamt sent the notice on 28 March 2019 by ordinary post (A-Post), and two further summonses on 5 and 29 April 2019, the last of which was sent by registered mail. Two attempts to reach the debtor in person failed. The notice of collection for the summons of 29 April 2019 is undisputed. Decisions are deemed served on the last day of the seven-day collection period if the addressee had to expect service (BGE 127 I 31 consid. 2a/aa); this is generally the case for a debtor who has not filed an objection. The argument that the attachment proceedings form a new procedural stage is not persuasive, as the Betreibungsamt remains competent. The situation is not…