Business No.:
5 T 220/11
5 T 221/11
3 M 300/10 Bad Gandersheim District Court
in the appeal matter
xxx
Complainant
Legal representative: xxx
against
xxx
Respondent
Legal representative: Lawyer. Sven Adam, Geismarstraße 55, 37073 Göttingen,
1. xxx,
2. xxx,
3. xxx,
4. xxx,
5. xxx,
6. xxx,
participants
1. The creditor's immediate complaint against the decision of the Bad Gandersheim District Court of December 7, 2010, Ref. 3 M 300/10, is rejected as unfounded.
2. In an amendment to the resolution of January 31, 2011, the costs of the procedure, including the reminder procedure, must be borne by the creditor.
3. The debtor will be granted legal aid for the complaint procedure.
4. Item value: 11,491.11 euros
Reasons:
I.
Due to the facts on which the immediate complaint is based, reference is made to the correct presentation of the Bad Gandersheim District Court in the decision of March 29, 2011.
The district court did not resolve the immediate appeal against the order of December 7, 2010 repealing the seizure and transfer order. As justification, the district court states that the seizure and transfer order was issued incorrectly because the name of the creditor in the title differs from that in the application for the issuance of the seizure and transfer order. A correction of the decision in accordance with Section 319 ZPO is not considered.
The district court also did not resolve the complaint against the costs decision of January 31, 2011. The cost decision regarding the reminder procedure can only be determined after the appeal court has made a final decision.
II.
The immediate appeal against the decision of December 7th, 2010 is admissible in accordance with Section 793 ZPO and must be filed in accordance with Section 569 ZPO in a timely manner.
However, the complaint is unfounded.
It is questionable whether the district court was allowed to overturn the seizure and transfer order on the grounds that the application for seizure and transfer had been withdrawn from the third-party debtors. The application for the issuance of a seizure and transfer order can only be withdrawn until the seizure order has been issued (see Stöber, Claims Seizure, 14th ed., para. 460). The law does not provide for a withdrawal after this point in time that would result in the resolution being repealed.
The cancellation of the seizure and transfer order could therefore only have taken place at the request of the debtor following a waiver by the creditor of the rights under the order. According to the case law of the Federal Court of Justice (see judgment of March 7, 2002, IX ZR 293/00, cited by Juris), in such a case an application can be made for the decision to be repealed in the interest of legal clarity. However, it is questionable whether the creditor's declaration that the seizures from the respective third-party debtors have been withdrawn can be interpreted as a final waiver within the meaning of Section 843 ZPO. The argument against this is that the creditor intended to continue the enforcement of the contested decision after correcting the seizure and transfer decision in accordance with Section 319 ZPO.
In addition, the debtor's representative's written statement dated December 2nd, 2010 does not contain any application to revoke the seizure and transfer order after the - supposedly - settlement has occurred.
However, the appeal proves unsuccessful for other reasons. As a result of the cancellation of the seizure and transfer order, it is irretrievably extinguished. A retroactive restoration of the decision by the appeal court is excluded (see Cologne Higher Regional Court, decision of September 17, 1986, 2 W 213/86, cited by Juris). The complainant therefore only has the option of using the appeal procedure to obtain a new seizure and transfer order with effect ex nunc. However, such a re-issuance of the repealed decision is out of the question.
The seizure and transfer order was issued incorrectly - as the district court had already correctly pointed out in the non-remedy order of March 29, 2011. The title of the city of Göttingen, which forms the basis of the enforcement, shows xxx as a creditor. Since - as the district court has also correctly pointed out - the name of the creditor in the title differs from that in the application for the issuance of the seizure and transfer order, the requirements of Section 750 Paragraph 1 ZPO are not met.
This deficiency could not have been remedied by correcting it in accordance with Section 319 ZPO. The district court also correctly stated that the correction of the name of a party requires that the change guarantees the identity of the parties. Any change in the identity of the creditor or debtor is inadmissible as a correction according to Section 319 ZPO (see Stöber, Garnishment of Claims, 14th ed., Rn. 523). The requested change to identify xxx as a creditor instead of xxx undoubtedly represents such a change in personality.
However, it is irrelevant that, as shown in the title, maintenance payments should be made to the legal representative authorized in accordance with Section 1629 Paragraph 2 of the German Civil Code (BGB). The substantive legal claim ownership is not relevant to the enforcement law formal requirement that the title creditor and the executor must be identical.
The costs of the procedure are borne by the creditor in accordance with Sections 91 and 97 ZPO. The district court's costs decision of January 31, 2011 must be modified in this respect.
