Debtor does not pay - what to do?
We explain what you can do to enforce your demands.
An everyday problem that probably almost everyone has ever had to contend with: you are a creditor of a monetary claim (for example, a seller of an item, a landlord of an apartment, etc.), but the debtor (in our example, the buyer of the item / tenant the apartment) just does not pay. So what do you do?
1. Step: induce debt default
The law ties up the debtor default many, favorable for the creditor legal consequences. For example, the debtor who is in default is, for example, regularly obliged to compensate the creditor for the damage resulting from the delay in performance. This may include, in particular, the costs of the subsequent commission of a lawyer (see 2., Step).
From the point of view of the creditor, it is therefore appropriate to ensure that the debtor is in default.
According to § 286 paragraph 1 BGB, a reminder is generally required for the occurrence of the default. A reminder in this sense is any unambiguous call for achievement. Setting a deadline is just as necessary as adherence to a specific form. The mere verbal request "Number finally!" Should therefore be sufficient on a regular basis. Nevertheless, it is advisable for reasons of proof to always send the debtor a written reminder, for example by registered mail or in the mailbox of the debtor in the presence of witnesses.
According to § 286 paragraph 2 and paragraph 3 BGB, there are also various cases in which the debtor already arrives without warning.
2. Step: Commissioning a lawyer
If the debtor does not pay despite a reminder, it is time to hand the matter over to a lawyer!
It is not advisable to wait too long because the evidence situation will worsen regularly as time goes on (the longer the facts lie, the worse potential witnesses may remember) and, secondly, the limitation of the claim ,
How the assigned lawyer ideally proceeds - directly in court or initially out of court - is a matter of each individual case. However, experience shows that in many cases it can be worthwhile to ask the debtor once again to pay extra-judicially and to show him the consequences that he has to expect in the event of non-payment.
3. Step: Judicial assertion of the claim
If all previous efforts have brought no success, ultimately remains only the way of judicial assertion of the claim.
The Code of Civil Procedure offers two ways to do this:
First, the "normal" action, in which a direct action for payment is brought to the competent court in order to obtain a judgment from which, finally, the enforcement against the debtor can be carried out.
On the other hand, the so-called court order, in which the creditor first an application for issuance of a dunning decision at the competent dunning court (in Bavaria: District Court Coburg), and then to apply for a so-called enforcement order on the basis of the order for payment, from which the foreclosure against the debtor can be operated.
Which type of procedure is indicated is in turn a matter of individual case and in principle requires a joint discussion with the lawyer appointed in the case. In the best case - debtor raises neither objection to the order, nor does he file an objection against the enforcement order - you can save yourself as a creditor by choosing the judicial dunning process time and money, if necessary.
If you also have problems with debtors who are unwilling to pay, please contact our law office by phone, mail or arrange a personal meeting at our offices in Regensburg or Landshut.
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