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  #41  
Old 13.05.2013, 17:06
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Re: Betreibung any experiences of the process.

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I am a part time machine embroiderer and take small orders from people or shops to decorate garments ,hats, etc. How can I protect myself when taking such orders in the future, wherein the agreement between me and the customer would have the force of a contract?
Sadly the short answer is make sure you get it all in writing / e-mail. Any verbal agreements, get the client to confirm in writing/e-mail or send you a purchase order and never start work/consider an order placed until you have that. It's easy enough to draft a pro forma if you want too
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  #42  
Old 13.05.2013, 17:13
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Re: Betreibung any experiences of the process.

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Congratulations on getting this very tedious matter sorted out Jumping Captain. I have gotten stuck at quite an earlier point in the Betreibung process. I have set it into motion, and my debtor ( a GmbH) has claimed "Rechtsvorschlag" , at which point I have to prove through a signed contract that he does indeed owe me. THe Betreibungsamt and the court says my previously and partially paid invoices & e-mail communications are not adequate proof that there was an agreement that the money is owed to me. I had no contract but rather an informal agreement, and until the customer stopped paying , it had worked well enough. Now it seems the Vermittleramt ( Mediation) is my last remaining hope according to the authorities in the Commune where the Debtor is based. Does this sound correct so far to people with such experience ?
I am a part time machine embroiderer and take small orders from people or shops to decorate garments ,hats, etc. How can I protect myself when taking such orders in the future, wherein the agreement between me and the customer would have the force of a contract? I appreciate any knowledgable feedback. Thanks

Simeon
Best thing you and anybody else can do is to document everything. I know it sounds like lots of time invested in making notes of dates, times, names, conversations, etc... But most businesses have some sort of customer account management software where notes can be entered with time and date automatically entered.

Documents, copy every e-mail, photos help... that is what saved my backside in this case.

Your case Simeon, if I understand correctly, is at a standstill due to lack of documentation. Here are some thoughts:
Do you have an initial invoice with the full amount?
Do you have receipts of the amounts paid so far with dates?
... if you have both of the above, then the debtor must show payment of the remaining amount.
If you have a form of product delivery verification, that would help too.

The way I see it, they paid partially on the full amount. This can be seen as acceptance of the full invoice (if the full amount was presented in the initial invoice). Failure to completely pay the full amount is the debtor's fault and should be possible to retrieved.

CYA: I am not a profi here from initiating three Betreibungs and going to court on one of them... but I will help where I can.
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  #43  
Old 13.05.2013, 18:19
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Re: Betreibung any experiences of the process.

Thanks Captain and eng_ch. I have purchase orders but nothing signed, like a receipt of goods document. I am quite inexperienced in the business side of things. Was in the same line of work in NY for years, but there worked only for people whom I trusted. I ( stupidly) assumed people in CH would be more honest.
Well...on we go.
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  #44  
Old 13.05.2013, 18:24
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Re: Betreibung any experiences of the process.

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I ( stupidly) assumed people in CH would be more honest.
That's how I started out now I realise that people are same all over. A not so small percentage will try to screw you over no matter where you are in the world.
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  #45  
Old 13.05.2013, 19:44
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Re: Betreibung any experiences of the process.

Thanks to the both of you for sharing. People are scoundrels all over the place Grey, will keep my fingers crossed for you! You too Simeon. Simeon, do you have a website posted in the commercial area here?

The absolute best thing you can do is to document everything.

As an example, I recently won a battle one day before the court date. I sent an invoice to a client (by then an ex-client) that abused a few example photos and drawings I made as examples... He thought he could use them for commercial purposes because it was "our" project. However, he hired me to create a plan. He then used my drawings and photos in public with his name as copyright. I sent a fat invoice!

He refused to pay and continued to use my material. I sent more of the duplicated invoices. The sum rang up over CHF 5k. I took it to the Betreibungsamt - he ignored the payment order and I took on an attorney which specialized in copyright. Eventually we had a court date.

The day before the big day, he settled. Worked out good for me, other than now there is an ex-client that spreads his bad words about me. Though I can not prove it, he is doing wrong. If I ever have the opportunity to document it, I can prove it in court and he will pay again
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  #46  
Old 13.05.2013, 20:07
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Re: Betreibung any experiences of the process.

I like how you get the job done Jumping Captain.
No, I don´t have a website at all. Right now , I´m a stay at home dad so I can´t devote all my attention to my work. For years I was able to earn enough (from here) with my work for people in NYC. Only in the last couple of years have I attempted to access the market for embroidery here in CH, and that with fits and starts.
Once I get something together in the website category, I will certainly post it.
Thanks for your encouraging words.
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  #47  
Old 14.05.2013, 08:47
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Re: Betreibung any experiences of the process.

Simeon, don't worry about the fits and starts just yet - it takes years to build a network anywhere, and longer here IME.

However, I'd love to see some of your work and find out how much you charge as I've been looking to get some branded clothing but haven't found anything satisfactory yet, especially in small volumes. And I'd rather put the business locally.
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  #48  
Old 14.05.2013, 10:37
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Re: Betreibung any experiences of the process.

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Sadly the short answer is make sure you get it all in writing / e-mail. Any verbal agreements, get the client to confirm in writing/e-mail or send you a purchase order and never start work/consider an order placed until you have that. It's easy enough to draft a pro forma if you want too
And further to this, albeit off topic, I make sure I have a signed order and deposit before I start any work. The problem arises when there is then additional work on the same order or a "good" client wants a rush job, we need to do the paperwork before, every time, no document trail, no money. I know a couple of people who really play on this and burn small contracters regularly before moving onto the next one.
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  #49  
Old 07.06.2016, 09:49
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Re: Betreibung any experiences of the process.

I would like to say that I have read this thread with interest, but in reality it is with fear and trepidation.


We made a business loan to an AG registered company. The company is owned by someone my husband knows and he thought he was trustworthy. The loan is for an amount in excess of six figures. The date for repayment of the loan is long passed and the debtor clearly has no intention of paying. On several occasions he says he has effected the payment, but no such payment has been received. It seems he is playing games with us.


We have a signed contract with the debtor which a lawyer says is legal, although the interest rate is high. The contract was drawn up by the debtor and the interest (which is expressed as a lump sum) was set by him.


We have opened a betreibung against the firm and it has come back with "Rechtsvorschlag". There are no other claims currently made against the firm. We now need to pursue the matter through the courts and will open a "Provisorische Rechtsöffnung". We have legal insurance but it does not cover this situation. We are seeing a lawyer on Friday.


Apart from comments as to our recklessness, gullibility and greed (all of which have been more than discussed in our home) does anyone have any advice? A previous respondent stated that one should use a lawyer in this situation. Does this mean take a lawyer's advice or appoint a lawyer to deal with the whole process on our behalf? The documentation from the Kantonsgericht mentions "ordentliches oder summarisches Verfahren" one of which is a speedier process than the other. Although the lawyer we see will be able to explain the implications of these processes, does anyone have any experience of using either of them.


Thanks in advance
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  #50  
Old 07.06.2016, 10:04
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Re: Betreibung any experiences of the process.

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A previous respondent stated that one should use a lawyer in this situation. Does this mean take a lawyer's advice or appoint a lawyer to deal with the whole process on our behalf?
I guess of interest to you and future readers; if a lawyer is employed, can any of the costs be passed to the debtor if the betreibung is found to be valid?

Otherwise, what is to discourage a malicious debtor causing as much hassle and delay as possible?
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  #51  
Old 07.06.2016, 10:17
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Re: Betreibung any experiences of the process.

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I would like to say that I have read this thread with interest, but in reality it is with fear and trepidation.


We made a business loan to an AG registered company. The company is owned by someone my husband knows and he thought he was trustworthy. The loan is for an amount in excess of six figures. The date for repayment of the loan is long passed and the debtor clearly has no intention of paying. On several occasions he says he has effected the payment, but no such payment has been received. It seems he is playing games with us.


We have a signed contract with the debtor which a lawyer says is legal, although the interest rate is high. The contract was drawn up by the debtor and the interest (which is expressed as a lump sum) was set by him.


We have opened a betreibung against the firm and it has come back with "Rechtsvorschlag". There are no other claims currently made against the firm. We now need to pursue the matter through the courts and will open a "Provisorische Rechtsöffnung". We have legal insurance but it does not cover this situation. We are seeing a lawyer on Friday.


Apart from comments as to our recklessness, gullibility and greed (all of which have been more than discussed in our home) does anyone have any advice? A previous respondent stated that one should use a lawyer in this situation. Does this mean take a lawyer's advice or appoint a lawyer to deal with the whole process on our behalf? The documentation from the Kantonsgericht mentions "ordentliches oder summarisches Verfahren" one of which is a speedier process than the other. Although the lawyer we see will be able to explain the implications of these processes, does anyone have any experience of using either of them.


Thanks in advance
The biggest question is can the company pay or will it just go bankrupt & you will loose your money & legal costs.
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  #52  
Old 07.06.2016, 10:31
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Re: Betreibung any experiences of the process.

I really don't know the answer to that. As far as I am aware, all AG's have to have CHF 100,000 Aktienkapital and it is recommended that a further 20% is also available. This would suggest that there could be at least 100k available.


It is galling to throw good money after bad, but we have to at least try. I assume that our court costs would be passed on to our debtor if we win our case and if he actually has any money to pay.
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  #53  
Old 07.06.2016, 10:37
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Re: Betreibung any experiences of the process.

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I really don't know the answer to that. As far as I am aware, all AG's have to have CHF 100,000 Aktienkapital and it is recommended that a further 20% is also available. This would suggest that there could be at least 100k available.


It is galling to throw good money after bad, but we have to at least try. I assume that our court costs would be passed on to our debtor if we win our case and if he actually has any money to pay.
Unfortunately not the case. You need 100,000 to start an AG (in fact I think in some cases only 50,000) but that capital can be used / spent as soon as the company is set up. I would suggest doing a check on them with money house to see what the balance sheet looks like before spending a lot with lawyers.
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  #54  
Old 07.06.2016, 10:44
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Re: Betreibung any experiences of the process.

Thank you very much. I will do just that. I hadn't realised that the capital could be spent.
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Old 07.06.2016, 11:11
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Re: Betreibung any experiences of the process.

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Thank you very much. I will do just that. I hadn't realised that the capital could be spent.
I worked for an AG that closed it's doors with losses in the millions, the 400k of capital was long gone.
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Old 07.06.2016, 11:31
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Re: Betreibung any experiences of the process.

So it would seem that pursuing our case could simply force our debtor into bankruptcy and we may not see any of our money, or, at best, very little of it. I wonder what price to put on revenge, which may be the sole motivator if we go further.
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Old 07.06.2016, 11:36
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Re: Betreibung any experiences of the process.

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So it would seem that pursuing our case could simply force our debtor into bankruptcy and we may not see any of our money, or, at best, very little of it. I wonder what price to put on revenge, which may be the sole motivator if we go further.
If they have run out of money they will go bankrupt soon enough, no point in being silly, wasting time & money.
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Old 07.06.2016, 12:05
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Re: Betreibung any experiences of the process.

Yes, you are right. I suppose that once the firm is forced into bankruptcy we can simply add our claim to other creditors as Jumping Captain mentioned in a previous post and save ourselves the court costs.
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Old 07.06.2016, 12:14
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Re: Betreibung any experiences of the process.

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Yes, you are right. I suppose that once the firm is forced into bankruptcy we can simply add our claim to other creditors as Jumping Captain mentioned in a previous post and save ourselves the court costs.
Though if you can pursue your claim through the court without involving lawyers, at least you may get a share before they've racked up even more debt.
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Old 07.06.2016, 12:47
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Re: Betreibung any experiences of the process.

From what I understand as our debtor has claimed "Rechtvorschlag" we now have 20 days to counter-claim for a dismissal of his objection which, in our case, will be based on the fact that we are in possession of a signed loan agreement. My husband spoke to a lawyer yesterday who suggested that we meet to discuss the matter and to ensure that we have filled out the forms correctly. The prediction is that this will not even take an hour so the cost is not too onerous. As far as I can see this part of the process should be manageable with advice from a lawyer only.


I think things would be more complicated if the debtor then initiated a lawsuit contesting the validity of our claim, which it seems he has the right to do, even if we win a provisional court dismissal. I imagine we would then require a lawyer, but presumably the debtor would also have to appoint a lawyer and weigh up his costs against fighting a court ruling.


At this point it certainly seems worth taking the first step, with the benefit of a report on the company from Moneyhouse as suggested by Grumpy Grapefruit (for which, many thanks).
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