(The following article was translated using a translation program. We know that these do not always work perfectly. Therefore, please bear with us for any linguistic inaccuracies. We hope that you will however find some helpful information in this article.)
If a creditor has an undisputed claim which is not paid, the judicial dunning procedure (order for payment and enforcement order) is a quick and easy way to enforce the claim. On this page, we have summarized some information on the judicial dunning procedure.
If you need legal support in connection with a judicial dunning procedure, you are welcome to contact us.
What is the automated judicial dunning procedure?
The automated judicial dunning procedure is a formalized procedure for obtaining an enforcement order.
At the end of the dunning procedure, the applicant receives an enforcement order with which they can pursue enforcement. The enforcement order is virtually equivalent to a judgment.
The judicial dunning procedure is defined in more detail in §§ 688 ff. ZPO (Code of Civil Procedure).
What is an order for payment (“Mahnbescheid”)?
The order for payment is a court document which is served on the defendant by specially established order for payment courts on the basis of an application submitted by the applicant with the assistance of a postal service provider.
The order for payment contains:
-
The details of the claimant, the defendant and, if applicable, the legal representatives
-
The type of claim and its amount
-
interest
-
Ancillary claims
-
Costs of the court and any legal representative
In addition, current interest is automatically calculated up to the date on which the order for payment is issued.
A total sum is listed from the main claim, the cost amounts and the calculated interest. The recipient can therefore see at a glance the total amount he has to pay.
What is an enforcement order (“Vollstreckungsbescheid”)?
The enforcement order may follow after service of the order for payment. If the defendant has neither paid nor lodged an objection after two weeks, the applicant can apply for an enforcement order to be issued.
The application for an enforcement order may only be made once the two-week period after service has expired. If the deadline falls on a Saturday, Sunday or a public holiday, the next working day shall apply.
The application for an enforcement order must be received by the dunning court within 6 months of service of the order to pay to the defendant. Otherwise, the effects of the order for payment already served will lapse (see Section 701 ZPO).
The applicant has the option of indicating partial payments by the defendant in the application for the enforcement order. If the claim has been paid in full, no further application for an enforcement order may be made. It is also possible to indicate changes of address that may have been communicated by the postal company.
The applicant can decide whether they wish to send the enforcement order to the applicant themselves or whether it should be served directly by the court. Service by the court is generally preferable and does not involve any additional costs.
The enforcement order forms the basis for compulsory enforcement. It is equivalent to a provisionally enforceable default judgment. The enforcement order should always be kept in a safe place, as it is a judicial title that proves that the claimant can claim the debt it contains.
The defendant still has the opportunity to lodge an objection within two weeks of service of the enforcement order. If the defendant lodges an objection, the legal dispute is automatically transferred to the trial court to conduct the contentious proceedings.
The enforcement order is a title that can be used to enforce the debtor’s assets (e.g. attachment of an account or wages).
Either the bailiff or the enforcement court is responsible for this. The enforceable copy of the enforcement order is always required for an enforcement measure. A mere copy is not sufficient. For this reason alone, the enforcement order should be kept in a safe place.
How does the judicial dunning procedure work?
The judicial dunning procedure is as follows:
The application for a court order for payment is submitted to the competent dunning court. The application is submitted via a special online access to the competent dunning court so that prompt delivery of the order for payment is guaranteed.
Your debtor will be formally served with the order for payment in a yellow envelope. The order for payment will state the principal claim as well as the procedural costs and interest. Your debtor is given the opportunity to pay the outstanding claim plus the procedural costs within two weeks of service of the order for payment.
There are three options after the dunning notice has been served:
-
the debtor pays: If your debtor pays in full within two weeks of the dunning notice being served, the dunning procedure is practically over.
-
your debtor does not pay: If your debtor does not pay in full within two weeks of the dunning notice being served, an application can be made for a court enforcement order to be issued. The enforcement order is a title and is equivalent to a default judgment that has been declared provisionally enforceable. You can use this title to pursue enforcement against the debtor for 30 years.
-
your debtor lodges an objection or appeal: If your debtor lodges an objection to the order for payment or an objection to the enforcement order, you have the option of continuing the proceedings as contentious proceedings. The proceedings will then continue like regular civil proceedings.
How do I apply for a court order for payment?
An order for payment can be applied for in writing or in electronic form. An intermediate solution is the barcode application.
How is the written application for an order for payment made?
There are official forms for most procedural applications. Anyone wishing to submit the application in writing must use these official forms (Section 703c (2) ZPO). This applies in particular to
-
the application for an order for payment itself
-
the subsequent application for the issuance of an enforcement order
-
the application for redelivery, if applicable
The written application for an order for payment can be obtained from office supply stores, among others. All other necessary forms (e.g. the application for an enforcement order) will then be provided by the dunning court.
How is the electronic application for an order for payment made?
The application for an order for payment can also be made using an interactive application form at
https://www.online-mahnantrag.de/
directly on the Internet. This has the advantage that some of the data entered is already checked for accuracy. Possible errors when filling in the form are thus reduced. The application data can then be sent electronically to the dunning court.
There is also special dunning software that creates the data records itself and transmits them to the server of the respective dunning court via the Internet.
However, electronic transmission is subject to special security requirements, e.g. encryption of the data and use of a qualified digital signature. An appropriate IT infrastructure must therefore be in place for this.
What is a barcode application?
The barcode application is an “intermediate solution” between the written and electronic procedure. Here, the creditor also enters the data for the dunning notice at
https://www.online-mahnantrag.de/
and then automatically generates a PDF file with a barcode containing all the necessary data. This PDF is then printed out and sent by post to the dunning court. As the barcode must remain legible, it must not be folded or sent by fax.
Is it possible to apply for a payment order without a lawyer?
An application by a lawyer is not mandatory. The creditor can therefore also apply for the order for payment himself. Many companies regularly do this themselves.
However, it should be noted that legal issues sometimes arise in the dunning procedure that must be taken into account when submitting the application. Incidentally, you cannot demand compensation from the debtor for the time spent on the dunning procedure (except for a flat-rate dunning fee of around €3).
However, if the debtor is in default, they must also reimburse all procedural costs, including the costs of a lawyer. It is therefore advisable to instruct a lawyer directly to carry out the dunning procedure in the event of late payment. The fees are then automatically included in the dunning notice and must be paid by the debtor.
What costs are incurred for a court order for payment?
Court fees are always incurred in court dunning proceedings. If you instruct a lawyer, you will also have to pay legal fees.
Initially, court fees are always incurred for the dunning procedure. The court fees depend on the amount in dispute. The amount in dispute is the amount of the main claim that is asserted with the dunning notice. The court fees, interest and reminder costs are ancillary claims and do not increase the amount in dispute.
The court fees are to be paid directly to the Justice Fund. After the payment order has been sent, the judicial fund issues an invoice for the court fees, which is forwarded to the applicant (i.e. you). The invoice for court fees contains the account details to which you must pay the fee.
The dunning procedure has one advantage over the “normal” legal action procedure: the order for payment is issued immediately, even if the court fees have not yet been paid. In legal proceedings, on the other hand, the action is only served once the advance on court costs has been paid. The dunning procedure therefore also saves time if everything is done correctly when the application is made. For this reason alone, you should have the dunning procedure carried out by a lawyer (unless you have in-depth knowledge of court dunning procedures yourself).
Legal fees are also incurred for the representation of the applicant by a lawyer. These are based on the RVG (statutory fees) or on a remuneration agreement.
The statutory fees also depend on the amount in dispute (i.e. the amount of the main claim asserted with the order for payment).
In contrast to the court fees, the statutory lawyer’s fees are somewhat higher if not only a payment order but also an enforcement order is applied for later. An enforcement order is necessary if the debtor does not pay despite receiving the dunning notice. The enforcement order is a court title from which enforcement can be carried out (as from a judgment).
You can find out how high the fees are in the following table of fees (as at 02/2023):
(All prices plus expenses and 19% VAT)
Does the debtor have to reimburse the fees for the dunning procedure?
In principle, the fees for a court order for payment are to be paid by the client. However, as soon as your debtor is in default of payment, he must reimburse you for the fees incurred (legal fees, court costs) as damages caused by default.
The same applies to enforcement proceedings. The debtor must also reimburse you for the fees incurred for this (e.g. bailiff’s fees).
Special local courts are responsible for the judicial dunning procedure, regardless of the amount in dispute. You therefore always apply for an order for payment at a specific court.
Which dunning court has jurisdiction?
Which dunning court has jurisdiction basically depends on the federal state / court district in which the creditor has his registered office or place of residence.
| Federal state / court district | competent court for payment orders |
|---|---|
| Baden-Württemberg | Amtsgericht Stuttgart |
| – Mahngericht – | |
| 70154 Stuttgart | |
| Bayern | Amtsgericht Coburg |
| – Mahngericht – | |
| Heiligkreuzstraße 22 | |
| 96441 Coburg | |
| Berlin und | |
| Brandenburg | Zentrales Mahngericht Berlin-Brandenburg beim |
| Amtsgericht Wedding | |
| – Zentrales Mahngericht – | |
| 13343 Berlin | |
| Bremen | Amtsgericht Bremen |
| – Mahnabteilung – | |
| 28184 Bremen | |
| Hamburg | Amtsgericht Hamburg-Altona |
| – Gemeinsames Mahngericht der Länder Hamburg und Mecklenburg-Vorpommern – | |
| 22747 Hamburg | |
| Hessen | Amtsgericht Hünfeld |
| – Mahnabteilung – | |
| 36084 Hünfeld | |
| Mecklenburg-Vorpommern | Amtsgericht Hamburg-Altona |
| – Gemeinsames Mahngericht der Länder Hamburg und Mecklenburg-Vorpommern – | |
| 22747 Hamburg | |
| Niedersachsen | Amtsgericht Uelzen |
| – Zentrales Mahngericht – | |
| Postfach 1363 | |
| 29503 Uelzen | |
| Nordrhein-Westfalen (OLG-Bezirke Hamm & Düsseldorf) | Amtsgericht Hagen |
| – Mahnabteilung – | |
| 58081 Hagen | |
| Nordrhein-Westfalen (OLG-Bezirk Köln) | Amtsgericht Euskirchen |
| -Mahnabteilung – | |
| 53878 Euskirchen | |
| Rheinland-Pfalz | Amtsgericht Mayen |
| – Mahnabteilung – | |
| 56723 Mayen | |
| Saarland | Amtsgericht Mayen |
| – Mahnabteilung – | |
| 56723 Mayen | |
| Sachsen | Amtsgericht Aschersleben |
| – Gemeinsames Mahngericht der Länder Sachsen-Anhalt, Sachsen und Thüringen – | |
| Dienstgebäude Staßfurt | |
| Lehrter Str. 15 | |
| 39418 Staßfurt | |
| Sachsen-Anhalt | Amtsgericht Aschersleben |
| – Gemeinsames Mahngericht der Länder Sachsen-Anhalt, Sachsen und Thüringen – | |
| Dienstgebäude Staßfurt | |
| Lehrter Str. 15 | |
| 39418 Staßfurt | |
| Schleswig-Holstein | Amtsgericht Schleswig |
| – Mahnabteilung – | |
| Postfach 1170 | |
| 24821 Schleswig | |
| Thüringen | Amtsgericht Aschersleben |
| – Gemeinsames Mahngericht der Länder Sachsen-Anhalt, Sachsen und Thüringen – | |
| Dienstgebäude Staßfurt | |
| Lehrter Str. 15 | |
| 39418 Staßfurt |
What are the exceptions to the general jurisdiction of the order for payment courts?
There are exceptions to the above-mentioned general jurisdiction of the dunning courts:
If, for example, the defendant does not have a general place of jurisdiction in Germany, the local court that would have jurisdiction for the contentious proceedings if the local courts had unlimited jurisdiction at first instance (Section 703d ZPO) has jurisdiction for the dunning procedure.
When asserting payment claims under the German Condominium Act (WEG), jurisdiction ultimately depends on the location of the condominium (see Section 43 WEG).
The labor courts have jurisdiction for payment claims arising from an employment relationship (e.g. outstanding wages).
Which court has jurisdiction if the applicant is based abroad?
If the applicant does not have a general place of jurisdiction in Germany, the Local Court of Wedding in Berlin has exclusive jurisdiction as a court for payment orders (Section 689 (2) sentence 2 ZPO).
The debtor has moved in the meantime - which court has jurisdiction?
If you sue a person, you must provide an address that can be used for service of the statement of claim. Sometimes it turns out that the defendant has moved. The question then arises as to whether the court seized has jurisdiction at all because the general place of jurisdiction of the place of residence (Section 13 ZPO) has changed.
The relevant provision for this is Section 261 Para. 3 No. 2 ZPO.
The principle that a trial court that has jurisdiction once remains competent even if circumstances change after lis pendens is also known in legalese as “perpetuatio fori”.
The lis pendens occurs when the action is filed. The decisive point in time for this - in the case of civil courts and labor courts - is the service of the action on the defendant.
This means that if a defendant moves after the statement of claim has been served, this has no effect on the original local jurisdiction of the court seized.
The application of this rule is somewhat more complicated in cases of judicial dunning proceedings. The case law of the higher courts is not always clear here. For example, the Higher Regional Court of Munich ruled that the time of service of the statement of claim is decisive (Higher Regional Court of Munich, decision of 09.07.2007 - 31 AR 146/07).
In another case, the Higher Regional Court of Schleswig ruled that the time of receipt of the file by the court in dispute was decisive (Higher Regional Court of Schleswig, decision of February 2, 2007 - 2 W 16/07). In the case decided, the defendant had moved from the district of the Reinbek District Court to the district of the Lichtenberg District Court after service of the order for payment.
The Higher Regional Court of Hamm, for example, ruled differently (OLG Hamm, decision of 29.10.2019 - 32 SA 64/19).
What happens if the debtor files an objection to the payment order?
The recipient of a dunning notice has two options after service: He can either settle the claim or lodge an objection. For this purpose, the defendant is given a deadline of 2 weeks from the date of service.
The objection can be lodged in writing. A suitable form is attached to the reminder notice for this purpose. However, the use of the form is not mandatory.
The dunning procedure is completed when the objection is lodged. The applicant will receive notification of this with a cost invoice for the contentious proceedings. If the claimant wishes to pursue the claim further, the contentious proceedings must be conducted. The contentious proceedings correspond to normal legal proceedings, i.e. the legal dispute is then transferred to the competent district court or regional court. The case is only transferred to the court of dispute once the costs for the further proceedings have been paid. In the contentious proceedings, the claim is negotiated as in normal legal proceedings - if necessary with the taking of evidence - and decided by settlement or judgment.
If the recipient only acknowledges part of the claim contained in the reminder notice, they have the option of lodging a partial objection. The objection is then limited to the disputed part. A writ of execution can be applied for the unopposed part.
What happens if a order for payment or enforcement order is not served?
This case is anything but unrealistic. It is quite possible for payment orders or enforcement orders to be served incorrectly. For example, the creditor may give an incorrect address for the debtor, e.g. that of the parents (the extent to which service can be proven or disputed afterwards is, of course, another matter).
The problem here is that the creditor can initially pursue enforcement from an enforcement order even if it has not been served on the debtor at all. This is because if the creditor can produce a copy of the enforcement order, enforcement will be carried out from this. The debtor must therefore actively defend himself if he wants to prevent enforcement.
In such cases, it is best to instruct a lawyer directly, who will immediately lodge an objection on the debtor’s behalf with the court that issued the enforcement order (at least if the claim is unknown or disputed). It should be possible to find out the dunning court and the reference number at the latest through the enforcement proceedings.
Such a procedure is by no means futile. In accordance with the statutory provisions, the two-week objection period against an enforcement order does not begin to run until the enforcement order has been served correctly.
The objection should therefore be accompanied by an inspection of the enforcement order and the service documents in order to obtain a more accurate picture of the circumstances of the service.
Affected parties should act immediately in such a case.
So if the debtor has actually received the enforcement order (e.g. from the bailiff), the original defect in service is cured in any case!
When is an enforcement order issued?
An order for payment is always issued first before an enforcement order.
An enforcement order is then issued by the court at the creditor’s request if the defendant has not lodged an objection to the order for payment in good time. The application cannot be filed before the expiry of the objection period. In the application, the creditor must also state whether and which payments have been made in response to the order for payment (see Section 699 (1) sentence 1, sentence 2 ZPO).
How is an enforcement order served?
An enforcement order is usually served on the defendant ex officio. However, the applicant can also request that it be sent to him/herself in order to arrange for service within the party.
How can you take action against an enforcement order?
An objection against an enforcement order is still possible.
The objection is the last opportunity for the debtor to take action against the claim asserted by the court! If no objection is lodged against the enforcement order, it becomes legally binding and - with very few exceptions - can no longer be contested with legal remedies. The creditor can then enforce the enforcement order for 30 years.
How long can an objection be lodged against an enforcement order?
The objection must be lodged within two weeks of service of the enforcement order (Section 700 (1) in conjunction with Sections 338, 339 ZPO). This is an “emergency period” (“Notfrist”), so it is not possible to extend this period.
The date of service can be found on the envelope in which the enforcement order was delivered by the post office. If the enforcement order was served by a bailiff, the date can be found on the service documents handed over by the bailiff.
Can an objection still be lodged after the two-week period has expired?
Only in a few exceptional cases is it possible to lodge an objection to the enforcement order even after the two-week period has expired. To do so, the debtor must submit an “application for reinstatement” and justify why they were prevented from lodging an objection in good time. However, reinstatement is only granted in the absence of fault.
Is an objection to an enforcement order at all sensible?
There is no general answer as to whether an objection to an enforcement order makes sense. It depends on the facts of the case. For example, an enforcement order can also be wrongly issued or incorrect. The dunning court does not check at all whether the claim asserted by the creditor actually exists.
Can the objection be limited to certain parts?
The objection does not have to relate to the enforcement order as a whole, but can also be directed against only part of the claim. If the enforcement order is only to be contested in part, the scope of the objection must be specified as precisely as possible.
In what form must the objection to the enforcement order be lodged?
The objection must be lodged in writing with the court that issued the enforcement order.
A specific form is not prescribed - at least at present.
In principle, the objection can also be submitted for the record at the registry of any local court (Section 702 (1) sentence 1 ZPO).
Important: If the objection is submitted in writing, it must be signed by hand (see BGH, judgment of June 3, 1987 - VIII ZR 154/86).
What is the effect of an objection to an enforcement order?
If an objection is lodged against an enforcement order, this leads to the immediate transfer of the proceedings to the trial court specified in the order for payment. By lodging an objection, the debtor therefore ensures that the matter is transferred to contentious court proceedings.
The creditor must then substantiate his claim with a so-called “statement of claim” (“Anspruchsbegründung”). The statement of claim is basically nothing more than a regular claim. From then on, the legal dispute continues as in regular legal proceedings.
Does the objection to an enforcement order have to be lodged by a lawyer?
There is no obligation to be represented by a lawyer when lodging an objection against an enforcement order (sections 78 (3) sentence 2, 702 (1) sentence 1 ZPO). This applies regardless of the amount of the claim. The objection itself can therefore be lodged without a lawyer.
However, if the legal dispute is transferred to a regional court after the objection, a lawyer must be appointed to represent you. For this reason, it is advisable to consult a lawyer as early as possible so that they can deal with the claim in advance.
Does the objection to the enforcement order have to be substantiated?
The objection to an enforcement order does not have to be substantiated (Sections 340 (3), 700 (3) ZPO). However, a response to the statement of claim must of course be made in the contentious proceedings if you do not want to lose the case.
Can an objection be used to avert enforcement?
An enforcement order is provisionally enforceable. The objection therefore does not stand in the way of enforcement from the enforcement order. If enforcement measures have already been initiated (e.g. seizure by the bailiff), separate applications for protection against enforcement must be submitted to the trial court.
Can an objection to an enforcement order be withdrawn?
The objection to an enforcement order can be withdrawn up to the start of the oral hearing (sections 346, 700 (3) sentence 2, 697 (4) ZPO).
Do you need help with dunning proceedings?
Our law firm has extensive practical experience from a large number of judicial dunning proceedings. Please contact us if you need help. We will ensure that the necessary formalities are complied with and, if necessary, we will also represent you in litigation proceedings.
In contrast to simple debt collection agencies, as a law firm we also have the opportunity to represent you without restriction before all German courts, local courts, regional courts and higher regional courts.
If your debtor is in default of payment, he is generally also obliged to reimburse you for the legal costs in the amount of the statutory fees (in particular the court fees and lawyers’ fees).