For a long time, merchants and craftsmen have complained about the poor payment behaviour of their customers. A court order is often the last resort for them to prompt defaulting customers to pay outstanding invoices. With high order amounts, a default in payment can threaten the existence of craft businesses. A legal court order is therefore recommended in order to secure the receivable and suspend the statute of limitations.
Before applying for a legal court order, the pre-legal dunning-and debt collection procedure should be implemented. It is essential that the company places the debtor in default. After an unsuccessful payment reminder, one should set a fixed payment date in the dunning letter to the customer. In the dunning letter, it is advisable to already threaten with legal action. If the debtor does not meet the specified due date, he is in default and thus required to pay the costs of the pre-legal and legal dunning procedures. Furthermore, the creditor is entitled to claim default interest starting from the due date. Before a legal court order is issued, ensure that the receivable is justified. A written contract or an invoice serves as proof of the legality of the receivable. The creditor's obligations under the contract should be fulfilled entirely and properly before a legal court order is issued. If the debtor is refusing payment on the basis of defective performance, the receivable could be unjustified. The debt collection court does not verify the eligibility of the claim before a court order is issued ("simplified conclusiveness test").
A court order is issued by the relevant central debt collection court. The central debt collection courts are located in the districts of the Higher Regional Courts in every federal state. Applications for a court order must be made with the locally responsible collection court that has jurisdiction over the creditor's place of residence or business. The application for issuance of the court order is done in writing. Creditors can obtain a form available at a stationery store or the use the online procedure. With the online procedure the user is guided through the application step by step, facilitating the entry of all necessary details. Finally, the applicant is assigned a registration number with a barcode. The application can be printed out, signed and then sent to the appropriate debt collection court along with the barcode. A court order is subject to a fee. The fee is payable upon receipt of the court order application at the central debt collection court. Therefore, the central debt collection court will only issue a court order after the applicant paid the fee. With the online procedure it is an option to authorize the central debt collection court to collect the fee via a direct debit. The direct debit saves time and thus speeds up the dunning procedure. Since the debtor ultimately has to pay this fee as an ancillary claim, a court order incorporates the fee with the principal claim.
The debtor has the option to object to the court order within two weeks of its delivery. If the debtor continues to refuse to pay the receivable and does not file an objection, an enforcement order will follow at the request of the creditor. This must be submitted within six months of the delivery of the court order. If the debtor files an objection, legal proceedings (dispute proceedings) will follow, in which both parties must state and justify their claims. If it turns out that the creditor's performance does not comply with the contractual arrangements, the creditor bears the costs of the proceedings. An actual receivable may even be found to be unjustified, if the creditor cannot produce any evidence.
If a court order results in neither an objection nor a payment by the debtor, the applicant can apply for an enforcement order. Prior to applying for an enforcement order, the debtor must be given a notice period of two weeks from the delivery date of the court order. The enforcement order has the characteristic of a legal distraint order. Therefore, creditors have the opportunity to initiate compulsory enforcement immediately upon delivery. If an appointed bailiff delivers the enforcement order in person, he may enforce the order at the same time that such order is being delivered. This applies even though the debtor is entitled to an objection to the enforcement order. The objection has no suspensive effect against the compulsory enforcement.