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SK 03 53 • KG LU SK 03 53 AI generated

Creditor's Right to Provisional Attachment Despite Debt Contestation Proceedings

Case Number SK 03 53
Court / Authority
Jurisdiction Switzerland · Canton of Lucerne (CH-LU)
Decision Date
Outcome Dismissed
Open official source Entscheidsuche mirror Machine-readable Markdown (.md)

Legislator summary

AI generated

The court upheld a notice of provisional attachment initiated after a creditor obtained provisional judicial authorization for debt collection, rejecting the debtor's appeal which argued that the authorization was not yet final due to the timely filing of an action to contest the debt. The court reasoned that for the purpose of requesting a provisional attachment under Art. 83 of the Debt Enforcement and Bankruptcy Act, the relevant requirement is the *formal* finality of the provisional authorization decision, which occurred upon service of the higher court's decision, irrespective of the subsequent filing of the contestation action. Furthermore, the required 20-day payment deadline, suspended during the opposition period, had also expired by the time the creditor requested the continuation of enforcement, thus satisfying both prerequisites for seeking a provisional attachment as security during the contestation proceedings.

Legislator headnote

AI generated

Art. 83 SchKG, Art. 82 SchKG, Art. 118 SchKG, Art. 83 Abs. 3 SchKG, Art. 69 Abs. 2 Ziff. 2 SchKG, Art. 88 Abs. 2 SchKG; Creditor's Right to Provisional Attachment Despite Debt Contestation Proceedings: The court reasoned that for the purpose of requesting a provisional attachment under Art. 83 of the Debt Enforcement and Bankruptcy Act, the relevant requirement is the *formal* finality of the provisional authorization decision, which occurred upon service of the higher court's decision, irrespective of the subsequent filing of the contestation action. Furthermore, the required 20-day payment deadline, suspended during the opposition period, had also expired by the time the creditor requested the continuation of enforcement, thus satisfying both prerequisites for seeking a provisional attachment as security during the contestation proceedings.

Keywords

AI generated
provisional attachment request for debt enforcement bankruptcy proceedings deadline for payment notice period opposition proceedings

Cited Legislation

AI generated
Art. 83 SchKG
This provision is cited in the title and subject matter, defining the scope for provisional attachment during the period for declaratory action.
Art. 82 SchKG
Cited as the basis for the creditor obtaining provisional judgment (provisorische Rechtsöffnung).
Art. 118 SchKG
Cited to explain that a creditor whose attachment is merely provisional cannot demand realization (Verwertung).
Art. 83 Abs. 3 SchKG
Cited to explain when provisional attachment becomes definitive.
Art. 69 Abs. 2 Ziff. 2 SchKG
Cited to determine the 20-day payment period following service of the payment order.
Art. 88 Abs. 2 SchKG
Art. 88 Abs. 1 und 2 SchKG
Cited regarding the suspension of the 20-day payment period when an objection is raised.
§ 112 Abs. 1 lit. a ZPO
Cited to establish when the provisional judgment became formally final following the appeal decision.

Cited Case Law

AI generated
BGE 122 III 38
BGE 92 III 56
AI generated
SK 05 16
Creditor v. Debtor (Promissory Note Enforcement)
OG 1992 43
Appeal on Debt Enforcement Regarding Receipt of Attachment Notice
2C 12 59
Loan Agreement Sufficiency for Provisional Debt Collection Authorization
OG 1994 49
Creditor Enforcement Rights Following Pfändungsverlustschein After Bankruptcy
SK 00 136
Affirmation of Provisional Legal Title Based on Debt Acknowledgment Despite Duress Claim Regarding Threat of Criminal Complaint

Key legal questions extracted by Legislator

AI generated
Art. 83 SchKG

This provision is cited in the title and subject matter, defining the scope for provisional attachment during the period for declaratory action.

Art. 83 Abs. 3 SchKG

Cited to explain when provisional attachment becomes definitive.

Art. 82 SchKG

Cited as the basis for the creditor obtaining provisional judgment (provisorische Rechtsöffnung).

Art. 69 Abs. 2 Ziff. 2 SchKG

Cited to determine the 20-day payment period following service of the payment order.

Art. 88 Abs. 1 und 2 SchKG

Cited regarding the suspension of the 20-day payment period when an objection is raised.

Art. 118 SchKG

Cited to explain that a creditor whose attachment is merely provisional cannot demand realization (Verwertung).

§ 112 Abs. 1 lit. a ZPO

Cited to establish when the provisional judgment became formally final following the appeal decision.

§ 114 Abs. 1 ZPO

Cited to specify that the certificate of finality is issued by the Obergericht.

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Full text

Rechtsprechung Luzern

Instanz: · Obergericht Abteilung: · Schuldbetreibungsund Konkurskommission Rechtsgebiet: · Schuldbetreibungsund Konkursrecht Entscheiddatum: · 08.04.2003 Fallnummer: · SK 03 53 LGVE: Leitsatz: · Art. 83 SchKG. Provisorische Pfändung während des Fristenlaufs für die Aberkennungsklage. Rechtskraft: · Noch nicht rechtskräftig.