Businessmen and -women and tradesmen and -women have complained for ages that their customers have poor payment habits. In many cases, a default summons is the last option for them to ensure that defaulting customers pay outstanding invoices. Because of high individual order totals, a delay in payment can jeopardise the very existence of crafts businesses. Therefore, a court summons is recommended to secure the claim and prevent it from becoming statute-barred.
Before a default summons is requested, the out-of-court dunning procedure should be carried out. It is important that the company gives the debtor a notice of default. After an unsuccessful payment reminder, a fixed payment date should be set for the customer in a dunning letter. It is recommended that the dunning letter should include the warning that legal action might be taken. If the debtor does not comply with the due date set, he/she is in default and, as a result, is obliged to pay the costs of the out-of-court and court dunning proceedings. In addition, the creditor can assert default interest as of the due date. Before a default summons is issued, it has to be ascertained that the claim is legitimate. A written contract or an invoice can furnish proof of the lawfulness of the claim. The creditor's obligations under the contract should be fully fulfilled without any defects before a default summons is issued. If the debtor withholds the payment because of defective performance, the claim might not be justified. The court does not review the justification of the claim before a default summons is issued (so-called simplified examination on whether the conclusions based on the facts are warranted).
A default summons is issued by the competent central dunning court. The central dunning courts are located in all of Germany's federal states, in the circuits of the higher regional courts. Moreover, a default summons must be requested from the dunning court having local competence and in the district of which the creditor has his/her registered office or residence. The application for the issue of a default notice must be submitted in writing. For this, creditors can use a form available from stationery shops or online. The online process takes the user through the application step by step - facilitating the entry of all the necessary information. At the end of the process, the applicant is issued a registration number with a bar code. The application can be printed, signed and then sent to the competent dunning court together with the bar code. A default summons by a court of law is subject to a fee. This fee falls due upon receipt of the application for the issue of a default notice by the central dunning court. Therefore, a default summons is only issued by the central dunning court after the fee has been paid by the applicant. The online process offers the option of authorising the dunning court to collect the fee using the direct debit procedure. Direct debiting saves time and, as a result, speeds up the dunning proceedings. Since, ultimately, the debtor has to pay the fee as an accessory claim, a default summons also includes this fee, in addition to the principal claim.
The debtor has the option of entering an objection within a period of two weeks as of the service of the default notice. If the debtor continues to refuse payment and does not enter an objection, an enforcement notice is issued upon the creditor's application, which has to be submitted within a period of six months as of the service of the default summons. If the debtor files an objection, court proceedings ensue (adversary proceedings) during which both parties have to explain their claims and give reasons for them. If it turns out that the creditor's performance does not comply with the contractual agreements, the creditor defrays the costs of the proceedings. The court might even consider an actual claim as being unfounded if the creditor is unable to furnish proof of it.
If a default summons does not lead to an objection or a payment by the debtor, the petitioner can request an enforcement order. Before an enforcement order is requested, the debtor must be granted a deadline of two weeks after the service of the default summons. The enforcement order corresponds to an attachment order by a court. Therefore, creditors can initiate foreclosure by attachment immediately upon the service. If a bailiff is commissioned and serves the enforcement order in person, he/she can carry out foreclosure concurrently with the service of the order. This option applies even though the debtor is entitled to the legal remedy of an objection against the enforcement order. In this case, an objection does not have a deferring effect on foreclosure.