Facts

[C. AG] (creditor, respondent) had a claim of CHF 16'200.-- plus 5% interest since 17 April 2017 enforced on 19 June 2017 by the Imboden Debt Enforcement Office against [A.A.] (debtor, appellant) and her husband [B.A.] (enforcement nos. xxx and yyy).

[B.A.] filed an objection (Rechtsvorschlag), [A.A.] did not, which is why the notice of attachment was issued on 21 August 2017. By letter of 25 August 2017, the debt enforcement office rejected recognition of the objection as a collective objection and referred to the possibility of a negative declaratory action.

On 16 September 2017, [A.A.] filed a negative declaratory action under Art. 85a DEBA with the Regional Court of Imboden, requesting the provisional stay of enforcement no. xxx as well as a prohibition on attachment measures and on notifications to third parties. The Regional Court granted superprovisional measures on 20 September 2017 and provisionally stayed the enforcement by decision of 6 March 2018.

The Cantonal Court of Graubünden partially upheld the appeal of the defendant by judgment of 16 October 2019, set aside the first-instance decision and dismissed the request for provisional stay. The costs of the appeal proceedings were imposed 4/5 on the plaintiff, who was also ordered to pay party compensation.

By way of a civil law appeal (Beschwerde in Zivilsachen), the plaintiff requested the annulment of operative paragraphs 1, 3 and 5 and the confirmation of the stay of enforcement including the prohibition on notifying third parties. In the alternative, she requested remittal. The respondent requested non-entry (Nichteintreten), alternatively dismissal. The Federal Supreme Court granted the appeal suspensive effect on a superprovisional basis and, on 3 February 2020, instructed the debt enforcement office not to initiate attachment steps for the time being.

The essential issue in dispute is whether a provisional stay of enforcement under Art. 85a para. 2 no. 1 DEBA is already admissible before attachment and whether the lower court arbitrarily denied this.

Considerations

The Federal Supreme Court examines the admissibility of the appeal ex officio. The appeal concerns a civil matter (Art. 72 FSCA) and is directed against a decision of a last cantonal instance (Art. 75 para. 1 FSCA). The amount in dispute requirement (Art. 74 para. 1 lit. b FSCA) is not met, whereby the existence of a legal question of fundamental importance may remain open, since in interim measure decisions only the violation of constitutional rights may be complained of (Art. 98 FSCA). The contested decision is an interlocutory decision within the meaning of Art. 93 FSCA, since the provisional measure applies only for the duration of the main proceedings. Whether an irreparable disadvantage (violation of personality rights, damage to reputation through wage garnishment) exists may remain open, since the appeal is in any event unfounded.

The complaint of violation of constitutional rights (Art. 106 para. 2 FSCA) must be raised and substantiated precisely. Factual elements concerning the allegedly missing attachable substrate that do not arise from the contested decision remain disregarded. An arbitrariness complaint (Art. 9 Cst.) requires that the decision be obviously untenable, grossly violate a norm or an uncontested legal principle, or run counter to the sense of justice in a manner that shocks the conscience.

The lower court denied a provisional stay before attachment. According to the wording of Art. 85a para. 2 no. 1 DEBA, it may remain open whether a specific point in time is meant. The lower court, however, correctly considered the legislative history: the 1991 Dispatch (FF 1991 III 70 f.) states that the judge must allow the enforcement proceedings to continue in the creditor's interest until attachment, until the creditor receives security. The parliamentary deliberations also confirm this.…