If a creditor who does not live in Germany has a claim for payment under a purchase contract, service contract, contract for work and services or for any other debt and the debtor who lives in Germany fails to pay, the creditor is faced by the question of how he can still enforce his claim and recover his money.
German law provides for two ways of asserting this payment claim:
- by filing a lawsuit and initiating litigation proceedings before a judge or
- by summary proceedings for a payment order conducted by a senior judicial officer
Summary proceedings for a payment order, governed by the German Code of Civil Procedure (Zivilprozessordnung), are – unlike a lawsuit – a simple, fast and inexpensive way to enforce a payment claim. The aim is to obtain a payment order (Mahnbescheid) or enforcement order (Vollstreckungsbescheid), with the help of which the creditor can assert his claim against the debtor who will not pay voluntarily by compulsory enforcement.
What are summary proceedings for a payment order?
Summary proceedings for a payment order are a simplified judicial procedure that enables creditors of a certain amount of money to quickly and inexpensively obtain a legal document that is required for enforcement. The advantage over a lawsuit is that the procedure is simpler, faster and cheaper.
It is simpler because it is largely conducted with the help of forms in which the claimant only has to enter a few data such as the amount of the claim, the name and address of the respondent as well as the grounds of the claim. As the court does not verify whether the alleged claim actually exists in summary proceedings for a payment order and there are no hearings or taking of evidence, the procedure is much faster. Finally, the court fees are lower than in a normal lawsuit.
Summary proceedings for a payment order consist of two stages. The first stage is the payment order, against which the other party – i.e. the respondent – can lodge an objection. If the respondent does not object, an enforcement order may be issued in a second stage at the claimant’s request. The respondent may lodge an appeal against the enforcement order.
If the parties have already argued in advance about the accuracy or amount of the claim, summary proceedings are not likely to be successful. Because it is highly probable that the respondent will lodge an objection or appeal. In this case, it could make more sense to file a lawsuit from the start.
How can you apply for a payment order?
If, for example, you have a claim against a private person or a company for payment of a certain amount of money, you can apply for the issuance of a payment order. You can either conduct the summary proceedings for a payment order yourself or request a lawyer to represent you.
For claimants whose registered place of business or residence is outside the Federal Republic of Germany, the Local Court of Wedding (Amtsgericht Wedding) – Zentrales Mahngericht Berlin-Brandenburg -,13343 Berlin has exclusive jurisdiction
There are various options for applying for the issuance of a payment order.
Firstly, a petition can be created on paper and sent to the court of the payment order proceedings by post. To this end, you can either obtain the official petition form from a stationery shop or generate a so-called barcode petition on an online portal, which you must print out on white paper after completion.
Under certain circumstances, the petition may also be submitted electronically as a file. Petition files are generated by a special business/office software or via an online portal and, depending on the transmission method, must sometimes bear a qualified electronic signature (for this purpose you need a signature card and card reader).
Transmission by e-mail is not permitted.
In response to your petition, the local court will issue a payment order. In this context, it will not verify whether the claim you have asserted actually exists, but only whether you have completed the petition form in full and your statements are conclusive. The payment order informs your respondent of the amount and grounds of your demand for payment. In addition, your respondent will be required to verify the accuracy of the claims and, within two weeks, either pay the total claimed amount to you or to lodge an objection against the payment order with the issuing court.
What do summary proceedings for a payment order cost and who has to pay the fees?
Court fees must be paid for summary proceedings for a payment order. The full amount of the fee for payment order proceedings already arises when the court receives the petition for issuance of a payment order. The further course of the proceedings has no impact on the amount of the fee. This means that the court fees are payable in full even if the payment order proceedings are not continued after receipt of the petition, no payment order and/or enforcement order is issued at all or if the petition is withdrawn.
The amount of the procedural fee depends on the value of the main claim (so-called value in dispute or value of the matter).
The claimant will receive an invoice for the court fees together with the notification that the payment order has been issued. The claimant must initially pay the costs himself. However, this amount will automatically be included in the payment order in addition to the claims specified by the claimant in the petition. The respondent therefore knows that the claimant also demands the reimbursement of the incurred court fees. The fees for summary proceedings for a payment order cover the entire proceedings up to the issuance of an enforcement order.
In the event that, after an objection or appeal, litigation proceedings mus be conducted before a judge, further court fees may arise, which are normally borne by the losing party in the end.
What should I do if I have received a payment order?
If you yourself have received a payment order as the respondent, please first read the “Important information from the court” on the back of the payment order.
Be sure to verify whether the claim specified in the payment order is justified, because the court has not yet done so.
If you believe that the claim specified in the payment order is completely or partly unjustified, you can lodge an objection. An objection form is attached to the payment order, which you can complete and return to the court. Summary proceedings for a payment order are initially “halted” by the lodging of an objection. If you or the claimant so request, the summary proceedings will then transition into a lawsuit before a judge. In this case, the court will examine whether the alleged claim actually exists. The claimant must first substantiate the claim, after which you will be given the opportunity to respond.
If you consider the claim to be justified and wish to settle it, please make payments only to the claimant or its legal representative. If the claimant’s bank details are not specified in the payment order and you do not know them from previous correspondence, please ask the other party to provide this information. If you wish to enter into an agreement to pay in instalments and/or defer payment, please also contact the claimant directly. The court has no influence on payment arrangements; this is up to the parties themselves.
You have at least 2 weeks to verify the claim, lodge an objection or pay the claimed debt to the claimant. This is precisely the period that the claimant must wait until he or she can continue the proceedings by applying for the issuance of an enforcement order. The objection period starts on service of the payment order, i.e. the date noted on the outside of the yellow service envelope. This even applies if you do not take the letter from your mailbox or open it until a later date.
What is an enforcement order?
If the respondent has not lodged an objection against the payment order and has not settled the claim, the claimant may apply to the court for an enforcement order. The claimant has six months after service of the payment order to apply for an enforcement order, otherwise the payment order will become ineffective.
The court issues the enforcement order, which is served on the respondent. After service of the enforcement order, the respondent has the opportunity to lodge an appeal with the court of the payment order proceedings within a non-extendable period of 2 weeks from service of the enforcement order. An objection has the effect that the summary proceedings for a payment order are immediately transferred to the court of dispute designated in the payment order and transformed into litigation proceedings before a judge without requiring a special petition. However, unlike the proceedings following the objection against the payment order, the enforcement order already entitles the claimant to seek provisional enforcement before the final decision of the court.
The enforcement order is an enforceable document. It identifies the claimant designated in the enforcement order as the creditor of a specific claim. With this document, the creditor can now attempt to recover his money by compulsory enforcement. As a creditor, the claimant must apply for compulsory enforcement measures with the competent enforcement court. The court of the payment order proceedings no longer has any jurisdiction for this.
The creditor himself or herself decides whether, when and which compulsory enforcement measures are to be applied for.
Important Note: This article has been prepared by lawyer Helmer Tieben for general information purposes only. Mr. Tieben does not accept any liability to any person or organisation for the use or reliance of the information contained in this article. On any specific matter, kindly contact us by dialing 0221 – 80187670 or sending us an email to email@example.com