What is a default summons?

If out-of-court dunning letters or the involvement of a collection agency remain fruitless, a court default summons is issued in many cases. This is often the last option for commercial enterprises and tradespeople to ensure payment from defaulting customers. In addition, as a private individual, you also have the option to enforce open accounts with the help of the court dunning procedure. As a collection agency, Paigo supports companies in this and, upon request, it can also apply for a default summons for you. The court dunning proceedings are based on the provisions of the German code of civil procedure. Its particular characteristic is that it permits enforcement without a formal lawsuit and ruling by using a simplified court procedure. Court dunning proceedings can only be initiated if the creditor has already fully performed and the claim has fallen due.

 

Requesting a default summons from the central dunning court

Local courts no longer have jurisdiction regarding court default summonses. Instead, the central dunning courts throughout Germany have competence. With the exception of North Rhine-Westphalia, every federal state has a central dunning court. In North Rhine-Westphalia, responsibility for this task has been transferred to two central dunning courts within the higher regional court districts, namely the local courts in Hagen and Euskirchen. In general, the court of the respective federal state in which the applicant is based has local competence. According to section 20 of the Act on Senior Judicial Officers, the dunning proceedings are processed by judicial officers. Applicants have the option of submitting the dunning application in writing or electronically. To achieve this, they can either purchase the necessary stationery from stationery shops or directly use the online dunning application system. The 2nd Act for the Modernisation of the Judiciary governs the transmission of the application for the issue of a default summons in an exclusively machine-readable format. The dunning court does not issue the default summons until the applicable fee has been paid. This fee is based on section 34 of the German Court Costs Act and the amount of the claim concerned. The creditor charges the debtor for the costs of the proceedings as ancillary expenses for the default summons. The same applies to costs caused by commissioning a lawyer or a collection agency.

Content of the application for the issue of default summons

The default summons form specifies the content of the application. In addition to particulars regarding the petitioner and the respondent, the application must also include an individual description of the claim. The amount of the principal claim, possible interest and existing ancillary claims must also be specified by the petitioner. In addition, the petitioner must also indicate the approach to be pursued in the event of an objection to the default summons. The petitioner can indicate whether or not court proceedings are to be carried out to resolve the lawfulness of the claim. In this case, he/she indicates which dispute court/trial court is to carry out the proceedings. Furthermore, the application must also be dated and signed and include information on possible attorneys of record.

The default summons and its consequences

The default summons forms the starting point of the court dunning proceedings; however, it does not represent an enforcement title. The debtor can respond to this in two ways: He/she can lodge an objection with the central dunning court within a period of two weeks as of the service of the default summons or pay the full claim with all incidental expenses specified. If the respondent does not reply to the default summons within this period, the competent dunning course will issue an enforcement order upon the petitioner's request. The request for the issue of an enforcement order may be made from the competent dunning court by the creditor at the earliest after a period of two weeks after the service of the default summons. The enforcement order has the effect of an enforcement title. As soon as the dunning court issues the enforcement order and serves it on the respondent, the creditor can commission a bailiff to enforce the claim. The petitioner decides in the application for the issue of an enforcement order whether the order is to be served via mail or in person by the bailiff. The enforcement order does not have any suspensory effect. This means it can be enforced independently of the objection period.

Possibilities to appeal against a default summons

The dunning court checks whether the claim was lawful (simplified examination of whether the conclusions drawn are warranted) before it issues a default summons. Therefore, upon receipt of a default summons, you should check the claim to ensure that the claim as well as the amount are correct. An objection is recommended if you think that the claim is unjustified in its entirety or in part as seen from your perspective. Since the law does not provide for any fixed period of objection against the default summons (with two weeks as of the service of the default summons constituting the usual period; however, this is not an exclusion/emergency period), an objection is possible until an enforcement order is issued. After that, the dunning court will consider your objection to be an objection against the enforcement order. The default summons includes an objection form which has to be filled in, signed and sent to the central dunning court (local court) by the respondent in case he/she intends to object.