Unpaid invoices

Finance, Taxes, Banking, Insurance and Retirement
1
Hi there -

I’m after some advice as to the correct process for taking a Swiss registered company to court to claim for unpaid invoices for work conducted as a contractor last year / early this year please.

Some background to hopefully help:

The company is officially registered in Rieden (6260) though in reality it is just a rented office room in a building there; the company is really run by its 2 owners from their house in Arlesheim (4144)

I sent monthly invoices in the agreed format stating 30 day terms throughout the period of our agreement (Apr 18 - Jan 19)

All work was performed during this period (though for one client, I continued to work for an additional month on the final report due to overrun which I didn’t invoice for) and was signed off by the Project Lead (which was me) and invoices sent and accepted by the company.

From the start I was never paid on time or the full amounts. From about Oct 18 onwards I’d been chasing on and off my monies owed directly with the owners informally (email, text message etc.) but again receiving excuses or only part payments.

When the projects ended mid-Feb I was still owed a lot of money.

After multiple informal (email, text) chases without response, at the beginning of May I finally sent them a summary of all the invoices and amounts still owed and put “Mahnung” on them and gave them 10 days to pay (based on what I found out on the internet)

No response(!) so I advised them if they didn’t pay I would start to add interest and fees, which then made them (to finally) came back to explain they had liquidity issues and so couldn’t pay yet (no dates specified)

I then sent “zuletzt mahnung” invoices with interest and fees applied, but also suggested a payment plan that if they agreed to I would forego the interest and fees.

They came back and sort of agreed to a delayed payment but have now said it would only be conditional to an investigation they are implementing to make sure I did all the work I invoiced them for and have removed all my emails from the server account I was using when working with them and are not responding to me and the date I gave them to reconfirm the payment plan without any conditions has now lapsed.

So I’ve finally had enough of this and I want to take them to court now.

So, I’ve had some “advice” from a friend that I need to take register the complaint in the canton they are registered, so is that Lucerne? Also where do I go to file this lawsuit (what place/office)? Do I need to go in person or can it be done online?

I live in France just on the other side of Basel. I am owed >€50k and I don’t speak German.

Any advice on the process I now need to follow please would be greatly appreciated. Also I wonder if I am allowed to start charging them a fee for the time I put towards this process, say the same hourly rate I was charging for the projects I did for them??

Thanks and apologies for the long message but hope this helps for you to give the precise advice I am after.

2
Very tough for you. First, if the work was done according to SIA rules, they can withhold 10% for up to 2 years to ensure the work has no defects. They can still try this by quoting the SIA contracts even if you didn't sign one with them.

Notwithstanding the above, go to the Betreibungsamt (sorry if mispelt - office de poursuite in French) and issue proceedings. You will have to pay a fee. While everything is in German, you'll often find they will hep you in French.

Before you do that, inform them one last time to the registered address and to their place of actual work by registered mail, that you will take this action if they do not pay or come to an agreement.

3
Thanks for the quick response.

I have a nice email from the client post-project saying how pleased they were with the results so this 10% holding they may try to withhold is just a delaying tactic you think?

Also where do I go to issue proceedings, Lucerne or Basel?

I’ll also give them 1 last try as advised then...

4
Swiss Authorities Online (ch.ch) has information on the debt claim (Betreibung) process:

https://www.ch.ch/en/debt-enforcement-request/

Also, SIA is the Swiss Engineers and Architects Association. Unless your work involved a construction project, its relevance to your situation is unclear.

5
At the official registered place of the company according Zefix. https://www.zefix.ch/ (Official Swiss commerce register)

For further information see the link by mullholander.

Also see here about the experience of some one who actually did it:

https://www.englishforum.ch/business...s-process.html

6
Absolutely it's a delaying tactic.

Maybe you know this, but for the future, establish for yourself a clear process for dunning. For example, a reminder 10 days after a bill is overdue, giving 10 days to pay, final reminder after a further 10 days, threatening Betreibung and legal proceedings. If still unpaid, issue Betreibung, start legal proceedings.

At all dunning steps give them the option to talk to you if they're having difficulties paying, with a view to coming to an arrangement. If the arrangement is violated by them, then all monies instantly become due and you issue a Betreibung and start legal proceedings.

Make sure you have legal insurance in place for exactly this kind of occurrence. By having a process, you can remove some of the emotional aspects of chasing debt. You just follow it without having to fret about it.

Paid membership of moneyhouse.ch can give you access to certain of their company information, which might be useful.

7
Send them an notice informing them that should your invoices not be paid within the next 7 days. You will start legal proceedings against their clients to prevent them from continuing to use your software until such time as the invoices will be paid. And if they don't pay up get a lawyer to send them a letter explaining that proceeding are about commence.

On the three occasions I had unpaid invoices, I have never had to get to the lawyer stage. Threatening their revenue stream, especially if they are strapped for cash, usually has the desired result.

8
Why did you carry on working for them if they weren't paying ypu properly in the first place ?

9
I didn't want to let the client down, it wasn't their fault that I wasn't being paid....they had deadlines and I just kept on receiving excuses about payments...

I think they held off paying me as late as they could, then they would pay me just enough to satisfy me'ish...

10
Thanks everyone for the feedback and the links, greatly appreciated. I'll check them all out in more detail later...

I think I'll send them the very latest invoice statements with the interest and fees applied today with one last chance to pay (giving them just 1 day to pay them in full, or at least respond/acknowledge).

I doubt they will though so will prepare on Thursday to go to the website provided and start a Betreibung in the Lucerne canton against them.

I'll look to keep this thread updated like the other one so people can keep informed and for future reference.

Wish me luck!

11
Any last words of advice in the meantime though....?

12
Last one point for advice on please...

I have outstanding invoices for 2 companies (both owned and run by the same people), do I start 2 separate Betreibung's or do I combine them (if I can anyway)? Both companies are registered to the same address in Reiden.

Thanks again!

13
I don't think anyone has mentioned it so far. But don't email letters and demands. Send them by registered post. The Swiss don't take any other form of threatening communication seriously unless it is registered.

If they are 2 separate GmbH/SA companies, then you need 2 Betreibungs.

14
I did say by registered post, but 1 days notice is not enough. You usually have to give 7 days. If they don't accept the mail, and it is returned, then you send it in a plain envelope by normal post, and that then counts as having been delivered.

You may also like to send it with proof or receipt. When it's signed you will be notified. I think there is even an app from Swiss post you can use which traces the envelope and signature.

15
One day is unreasonable.

So they are using more than one company to do business and they are patchy in making payments... and your contract is with one of their companies. I'd be willing to bet that you are not the only one filing claims.... I would have not have great hopes of you being successful this way.

16
OK, I'll give them 7 days to pay.

When I previously sent the Mahnung by email they did respond back after I threatened to add interest and fees, so is that acknowledgement that they received the first one?

But as recommended I'll send out the Zuletzt Mahnung by registered post to their registered address (since I know it won't be signed for at their registered address since no-one actually works there) and also one to their home address...

In terms of it happening before I've subsequently found out that last year someone took them to court and just before the judge was about to rule against them they paid up and another friend struggled to be paid also but eventually did without having to resort to action. Also there are 2 other contractors who are currently owed money and are also considering to take them to court like me but are slightly behind the process (I think they are about to send their first Mahnung)...

17
Who's fault was it then?

You have been doing work for a business that is underfinanced. Why didn't they borrow the money from a bank at today's competitive rates? Because the banks found them to be too big a risk. Meanwhile they are borrowing from you interest-free.

Good luck with this and if there are other companies owned by these people get that in ASAP before it alö goes tots up...