Starting point: 2-week objection period

An objection must be lodged against an enforcement order within two weeks of service in order to avoid its legal force (Section 700 ZPO in conjunction with Section 339 ZPO). Legal remedies against this are then generally no longer available.

If this deadline is missed, there are only a few options left:

Very rarely: Reopening of the proceedings

A so-called reopening of the proceedings pursuant to Sections 578 ff ZPO would be conceivable.

The few reasons for a resumption are e.g:

• Incorrect composition of the court
• a forged document as the basis for the enforcement order.

Counterclaim for enforcement – substantive legal force of the enforcement order?

In any case, according to the Higher Regional Court of Cologne, an enforcement order has no substantive legal force. Objections can therefore be asserted in special cases by means of a counterclaim for enforcement.

The prominent background to this case law were numerous lawsuits in which private borrowers had defended themselves against legally binding enforcement orders (Section 700) issued by lending banks. They claimed that they had suffered immoral damage as a result of the enforcement, because the banks had obtained the enforcement orders in the knowledge that the underlying installment loan agreements were immoral and void.

The Higher Regional Court of Cologne denied the enforcement order any substantive legal effect due to the lack of judicial review (NJW 1986, 1350):

1. Despite the reference in Section 700 I ZPO, an enforcement order does not become legally binding.

2. If the requirements of an immoral installment loan are met, the enforcement orders can be challenged with an enforcement counterclaim under Section 767 ZPO, or alternatively under Section 826 BGB, and enforcement can be declared inadmissible. (unofficial guidelines)

The Cologne Higher Regional Court explained its reasoning:

The occurrence of formal (external) res judicata (§ 705 ZPO) of the enforcement order due to the fruitless expiry of the objection period (§§ 339, 700 I ZPO) does not necessarily mean that the enforcement order also becomes substantive res judicata. Formal res judicata is a prerequisite for substantive res judicata, but not vice versa (see Rosenberg-Schwab, § 150, 2, p. 919). Rather, substantive legal force is to be assessed according to independent criteria. According to § 322 I ZPO, not only judgments are capable of res judicata, but also, according to the prevailing opinion in the literature (Rosenberg-Schwab, § 153 I; Stein-Jonas-Schumann-Leipold, ZPO, 19th ed., § 322 note V 1; Thomas-Putzo, § 322 note 2a), court orders, provided that they are capable of formal res judicata and decide on a legal consequence whose effect extends beyond the proceedings. These requirements no longer apply in full to the enforcement order.”

Action for immoral fraudulent evasion of the enforcement order pursuant to Section 826 BGB

The prominent case of enforcement notices from lending banks described above is also the basis for further higher court rulings, according to which an action based on Section 826 BGB is possible in special circumstances. In this case, it would have to be argued and proven that the claim on which the enforcement order is based is unjustified and that the creditor has obtained the order unjustifiably or by deception or unlawful threat.

Similar to the Higher Regional Court of Cologne, the Higher Regional Court of Stuttgart considers a softening of the res judicata effect in special cases. The debtor should not be definitively cut off from his objections by merely “remaining silent”. At the very least, he should be granted an application to make up for the conclusiveness test in accordance with Section 826 BGB. The Higher Regional Court of Stuttgart stated(NJW 1985, 2272):

“It is doubtful whether the rule of law is sufficiently taken into account by the fact that the debtor could have defended himself in the order for payment proceedings and that an official review would then “automatically” have taken place. Whether the debtor’s objections and defenses (of which the court cannot know anything without a factual submission) are definitively cut off if he does not defend himself in good time is of a different quality than if the debtor is to be definitively denied the right to assert that the plaintiff’s own factual submission already shows that no title should have been issued at all if the court had only carried out this examination. Nowhere else – other than in the new order for payment proceedings – does the debtor’s concealment lead to the court making an incorrect decision “with its eyes open”.”

The BGH also considers an action under Section 826 BGB against legally binding enforcement orders to be possible:

The starting point of the BGH is that the enforcement order is issued without judicial review. The first prerequisite for a successful claim under Section 826 BGB is that the enforcement order in question is, in the opinion of the deciding court, legally incorrect and therefore materially incorrect.

Furthermore, the defendant must have been aware of the incorrectness of the title. When this can be assumed is a question of the individual case. Finally, the enforcement of the enforcement order in question would have to be immoral. This may result, for example, from such a “serious inaccuracy” that any enforcement from it appears to be “intolerable”.