Case No.:
5 T 220/11
5 T 221/11
3 M 300/10 Local Court Bad Gandersheim
in the appeal matter
xxx
Complainant's
legal representative: xxx
against
xxx
Respondent's
legal representative: Attorney Sven Adam, Geismarstraße 55, 37073 Göttingen,
1. xxx,
2. xxx,
3. xxx,
4. xxx,
5. xxx,
6. xxx,
participants
1. The creditor's immediate appeal against the decision of the Bad Gandersheim Local Court of 07.12.2010, file number 3 M 300/10, is dismissed as unfounded.
2. The costs of the proceedings, including the appeal proceedings, shall be borne by the creditor, notwithstanding the decision of 31 January 2011.
3. The debtor is granted legal aid for the appeal proceedings.
4. Value in dispute: 11,491.11 euros
Reasons:
I.
Regarding the facts underlying the immediate appeal, reference is made to the accurate presentation by the Bad Gandersheim District Court in its decision of March 29, 2011.
The local court did not grant the immediate appeal against the order of December 7, 2010, which had revoked the attachment and transfer order. The court reasoned that the attachment and transfer order had been issued erroneously because the creditor's name in the title differed from that in the application for the attachment and transfer order. A correction of the order pursuant to Section 319 of the German Code of Civil Procedure (ZPO) was not possible.
The local court also did not grant the appeal against the cost decision of January 31, 2011. The cost decision regarding the objection proceedings can only be determined after a final and binding decision has been reached by the appellate court.
II.
The immediate appeal against the decision of December 7, 2010 is admissible pursuant to Section 793 of the Code of Civil Procedure and was filed in due form and time pursuant to Section 569 of the Code of Civil Procedure.
However, the complaint is unfounded.
It is questionable whether the local court was entitled to revoke the garnishment order on the grounds that the application for garnishment had been withdrawn vis-à-vis the third-party debtors. An application for a garnishment order can only be withdrawn until the garnishment order is issued (see Stöber, Forderungspfändung [Garnishment of Claims], 14th ed., para. 460). The law does not provide for a withdrawal after this point that would result in the revocation of the order.
The revocation of the attachment and transfer order could therefore only have occurred upon application by the debtor following a waiver by the creditor of the rights arising from the order. According to the case law of the Federal Court of Justice (see judgment of March 7, 2002, IX ZR 293/00, cited in Juris), in such a case, a revocation of the order can be requested in the interest of legal certainty. However, it is questionable whether the creditor's declaration that the attachments against the respective third-party debtors had been withdrawn can be interpreted as a final waiver within the meaning of Section 843 of the German Code of Civil Procedure (ZPO). This is contradicted by the fact that the creditor intended to continue enforcement based on the challenged order after its correction pursuant to Section 319 of the ZPO.
Furthermore, the written submission from the debtor's representative dated December 2, 2010 does not contain any request for the revocation of the attachment and transfer order after the – supposedly – settlement has occurred.
The appeal, however, proves unsuccessful for other reasons. The garnishment and transfer order has been irretrievably extinguished by its revocation. Retroactive reinstatement of the order by the appellate court is precluded (see Cologne Higher Regional Court, decision of September 17, 1986, 2 W 213/86, cited in Juris). The appellant thus only has the option of obtaining a new garnishment and transfer order with effect from now on in the appeal proceedings. However, such a reissuance of the revoked order is not possible.
The garnishment and transfer order was issued erroneously – as the local court correctly pointed out in its decision of March 29, 2011, denying the appeal. The title issued by the City of Göttingen, which forms the basis for enforcement, identifies xxx as the creditor. Since, as the local court also correctly pointed out, the creditor's name in the title differs from that in the application for the garnishment and transfer order, the requirements of Section 750 Paragraph 1 of the German Code of Civil Procedure (ZPO) are not met.
This defect could not have been remedied by way of correction pursuant to Section 319 of the German Code of Civil Procedure (ZPO). The Local Court correctly stated that the correction of a party's designation requires that the change guarantees the parties' identity. Any change to the identity of the creditor or debtor is inadmissible as a correction under Section 319 ZPO (see Stöber, Forderungspfändung [Attachment of Claims], 14th ed., para. 523). The requested change, to designate xxx as the creditor instead of xxx, undoubtedly constitutes such a change of identity.
It is irrelevant, however, that the maintenance payments, according to the title, were to be made to the legal representative entitled under Section 1629 Paragraph 2 of the German Civil Code (BGB). The substantive legal entitlement is not relevant for the enforcement requirement that the judgment creditor and the enforcing party must be identical.
The creditor shall bear the costs of the proceedings in accordance with Sections 91 and 97 of the German Code of Civil Procedure (ZPO). The cost order issued by the Local Court on January 31, 2011, is to be amended accordingly.
