How to file a resistance against a payment order?

A client contacted the office of an Dostupný advokát claiming that she had become a defendant by way of a payment order in a dispute with a company that facilitates online property auctions.

While browsing real estate websites, Ms. Lucie came across an advertisement for a company that facilitates the sale of real estate at auction. However, the company’s website promised more information about the terms of the auction after registration, which the client eventually went through. She then received several automated emails from the company to the email address she had entered, but the requested information was still not among them. In the end, Lucie did not use the company’s services in any way , did not bid for or purchase any property, and did not actually receive the requested information. Nevertheless, to her surprise, she received a request to pay the allegedly charged registration fee together with a notification that she had entered into a contract with the company by registering. However, nothing of the kind was apparent from the previous communication and she therefore did not respond to the invitation. A few months later, however, she received a letter from the court containing a payment order for the payment of CZK 5 000 with the relevant charges. The client rightly believed that she had been a victim of consumer fraud and therefore contacted us.

Together we prepared a resistance against the payment order, in which we pointed out the unfair practices committed by the company. Among other things, at the time of Ms Lucie’s registration, no price list was published on the company’s website, nor was there any information that registration constituted a contract. Agreeing to the Terms and Conditions, in which surprising provisions are hidden in the small print, which nothing in the communication and information provided so far pointed to, cannot be considered as a valid conclusion of a contract, if nothing else points to such a step. In response to the payment order, we proposed that the court should dismiss the claim in its entirety and award Ms Lucia her costs.

The court accepted all our arguments and subsequently dismissed the company’s claim. Ms Lucie therefore did not have to pay anything at all. Nevertheless, there are many people who have been deceived by the company and have paid the money demanded.

When can I expect a payment order?

An order for payment is a decision of the court made in an expedited procedure when it appears to the court that it has sufficient allegations and evidence on which to make a decision. It is typically issued where there is, for example, an overdue invoice issued by one party which has not been paid by the other and the situation appears to be clear cut. Conversely, a payment order will certainly not be issued in a situation where you are claiming damages and it is not clear exactly who caused the damage, to what extent and whether it was not also caused by you.

Interestingly, the issuing of an order for payment is primarily based on the discretion of the judge. An order for payment can be issued even if the claimant does not propose it. Conversely, if the claimant proposes a payment order but does not prove his or her allegations fully convincingly, the court will not issue it.

According to the law, an order for payment cannot be issued if the court is to hear and determine the case in chambers or if the defendant’s whereabouts are unknown.

Since the order for payment is issued in summary proceedings in which the defendant’s rights are to a large extent restricted, such restrictions must be at least partially compensated for. First of all, it is indeed necessary to serve the order for payment on the defendant in his own hands so that he can demonstrably acquaint himself with it. If the order is not served, it is set aside and the proceedings continue with a conventional judgment. Service by fiction is not permitted here.

How to pay the (electronic) order for payment?

It is not always a good idea to defend against a payment order. If you know that the order for payment was issued rightfully, for example you have neglected to make a payment, the best course of action is to pay everything as soon as possible so that the amount does not increase further. If the procedure is not clear to you from the payment order, contact the claimant or his solicitor directly and ask him to give you the account number to which you should pay the principal and any additional amounts (and legal costs if applicable).

You have 15 days to pay the amount, as well as to lodge any opposition. If you cannot pay the full amount, try to agree a repayment plan directly with the claimant. However, you are not legally entitled to this; it depends on your negotiating skills, arguments and, above all, the creditor’s willingness.

Remember, however, that if you do not take advantage of the remedy, whether you intend to pay the debts or not, the order for payment will become a judgment with all its effects, especially for obtaining an enforcement title for further possible proceedings.

Do you disagree? Resist!

A payment order is not an irreversible thing. If you are not aware that you owe someone the amount in question, definitely do not pay just “to be quiet”, but defend yourself. You have a statutory period of 15 days to resist. If the appeal is used within this time, the payment order is cancelled and the court proceedings continue in the traditional way. There is no fee for filing a statement of opposition.

Filing a statement of opposition is often worthwhile even if you need to buy time. You can then use this time to negotiate a settlement with the other party.

What should the resistance contain?

Before you start drafting the statement of defence, first of all, study in detail what all arrived in the envelope from the court. It may be that you have received an invitation (in the form of an order) together with the order for payment to make a statement within the time limit, in particular as to whether or not you accept the claim and, where appropriate, to state the decisive facts in your defence and support them with evidence.

If, however, you do not make a statement within the time-limit or do not inform the court of the reasons which prevent you from doing so, you shall be deemed to have admitted the claim .

In your statement or defence, you should first of all indicate who makes the statement or defence and the matter/what the order for payment relates to. State that you do not recognise the order for payment and for what reason. In principle, you are not necessarily expected to submit a full statement of your case, including all the evidence, within the short time limit you have for making your statement; there will be time for this in the court proceedings.

On the other hand, if you already have such evidence and arguments at this point in time, it is appropriate to provide them. In such a case,it is not really worth using models of resistance to a payment order from the internet. As is also clear from the situation described above, each case is completely different and you need to support your claim with solid arguments that there are no grounds for issuing a payment order.