Enforcement proceedings entered in the debt enforcement register may have concrete consequences on a debtor's daily and professional life: difficulties renting an apartment, obtaining credit or signing a contract. Understanding the rules governing the communication of proceedings to third parties (art. 8a DEBA) and the avenues for obtaining removal is essential. PBM Avocats assists debtors wishing to clean up their enforcement register from Geneva and Lausanne.
The Enforcement Register and Its Communication to Third Parties (Art. 8a DEBA)
The enforcement office maintains a register of all proceedings initiated in its district. Art. 8a DEBA governs the conditions under which this register may be consulted by third parties. In principle, any person may obtain an enforcement extract concerning a third party by demonstrating a legitimate interest, which covers in particular landlords, employers, banks and suppliers.
The information communicated to third parties is limited in time: proceedings are only mentioned in the extract communicated to third parties for five years from the date of the enforcement request. After this period, the proceedings no longer appear in extracts issued to third parties, even if they have not been formally removed. Certain particular categories of information — notably certificates of loss — are communicated for a longer period.
Removal by Withdrawal of the Enforcement Request
The simplest and fastest way to obtain removal of enforcement proceedings is to obtain from the creditor a withdrawal of their enforcement request. This withdrawal is possible at any time, notably after payment of the debt or conclusion of an amicable agreement. The creditor sends a withdrawal declaration to the enforcement office, which makes the corresponding annotation in the register.
Withdrawn proceedings no longer appear in extracts communicated to third parties. However, withdrawal of the request does not erase the proceedings from the office's archives; they may still be mentioned in extracts issued to the debtor themselves. It is therefore important to negotiate a complete withdrawal and verify that the office has indeed made the annotation.
Judicial Removal: The Action for Cancellation of Proceedings (Art. 85a DEBA)
When the creditor refuses to withdraw their request while the claim is non-existent, time-barred or already paid, the debtor may bring an action for cancellation of proceedings (art. 85a DEBA) before the competent court. The debtor must prove that the debt does not exist, is extinguished or benefits from a stay granted by the creditor.
If the action is admitted, the court orders the cancellation of the proceedings and removal from the register. Unlike an objection to a payment order, the action for cancellation of proceedings may be brought even after the expiry of the 10-day objection period, and even after the proceedings have been continued. However, it does not automatically suspend the proceedings.
Removal and Payment of the Debt
Full payment of the debt — in principal, interest and costs — is often the condition set by the creditor for withdrawing the enforcement request. Our lawyers negotiate with creditors to obtain an agreement explicitly including withdrawal of the proceedings, so as to avoid the debtor paying without benefiting from removal.
In the event of partial payment or agreement on a reduced amount, it is important to specify in the receipt or settlement agreement that the creditor undertakes to withdraw the proceedings. Our lawyers draft these documents to secure your rights and assist with the steps at the enforcement office to ensure that removal is effectively carried out.
Frequently Asked Questions on Removal of Enforcement Proceedings
How long does enforcement proceedings remain entered in the register?
Under art. 8a DEBA, enforcement proceedings are mentioned in register extracts for five years from the enforcement request. After this period, they can no longer be communicated to third parties upon simple request. However, the proceedings themselves remain recorded in the office's archives and may be consulted by the parties concerned. If the proceedings are withdrawn or the objection has been definitively upheld, the creditor may request early removal.
How to request the removal of unjustified enforcement proceedings?
If enforcement proceedings have been unjustly notified (non-existent, time-barred or already paid claim), the debtor may act by several means: ask the creditor to withdraw the enforcement request (amicable removal); bring an action for cancellation of proceedings before the court (art. 85a DEBA); file an objection and, if lifting is granted, bring a debt discharge action (art. 83 DEBA). In the event of abusive or vexatious proceedings, a civil liability action against the pursuing creditor is also conceivable.
Are enforcement proceedings erased if the debtor pays?
Not automatically. Payment of the debt extinguishes the obligation but does not automatically delete the entry of proceedings from the register. To obtain removal, the debtor must obtain from the creditor a withdrawal of the enforcement request and a declaration to that effect addressed to the enforcement office. If the creditor refuses to withdraw the proceedings despite payment, the debtor may apply to the supervisory authority by way of complaint (art. 17 DEBA) or to the court by way of action.
What is the enforcement extract and who may consult it?
The enforcement extract is an official document issued by the enforcement office at the debtor's domicile, listing all enforcement proceedings and certificates of loss currently pending against a person, within the limits of art. 8a DEBA. Any third party demonstrating a legitimate interest may request it (landlord, employer, bank, etc.). The debtor themselves has the right to obtain their own extract at any time. Public authorities and certain professionals have extended access rights.
Does the prescription of a claim lead to automatic removal of the proceedings?
No. The prescription of the underlying claim does not lead to automatic removal of the proceedings entered in the register. The proceedings remain visible for five years from the enforcement request (art. 8a DEBA). However, if the claim is time-barred, the debtor may invoke prescription as a defence in lifting proceedings or court action, which may lead the creditor to withdraw the proceedings. In the absence of agreement, court action may be necessary to obtain removal.