schkg_maerz_2018

20 March 2018

I don't agree with the schedule of claims – what now?

Schedule of claims  – What is it all about?
Once bankruptcy proceedings have been opened over a debtor, the bankruptcy administration must prepare an inventory to determine the extent of the bankruptcy estate. By means of public notice, the creditors and debtors of the bankrupt are requested to come forward (so-called call for claims). Within one month, the creditors must file their claims or other demands against the bankrupt with the bankruptcy administration. Subsequently, the bankruptcy administration draws up a list of claims.
The bankruptcy administration checks the registered claims and decides whether it recognizes them and, if so, in what amount and rank. Based on these decisions, it draws up the schedule of claims. It is a schedule showing the order in which the claims of the various creditors should be satisfied. The rejected demands are also marked on the schedule of claims, together with the reason for the rejection.

The schedule of claims is available for inspection at the bankruptcy office, and this fact will be announced publicly. Creditors whose claims have been rejected in whole or in part, or who have not received the requested rank, are specifically notified of the publication of the schedule of claims and the rejection of their claim.

Incorrect scheduling of the creditor's own claim
If a creditor does not agree with the schedule of claims because its own claim has been rejected, in whole or in part, or not ranked as requested, it must sue the bankruptcy estate (so-called "positive challenge of the schedule of claims"). If the action is successful, the judgment and, as a consequence, the modification of the schedule of claims, are binding on all creditors. The prevailing creditor participates pro rata in the distribution of the liquidation proceeds to the extent of its successful action, and the remaining fellow creditors receive correspondingly less.

Incorrect scheduling of another creditor's claim
If a creditor does not agree with the approval of another creditor or their rank or the amount of their scheduled claim, it must file a claim against the other creditor (so-called "negative challenge of the schedule of claims"). If the plaintiff creditor prevails, the other creditor's share in the bankruptcy estate is reduced by the amount necessary to satisfy the plaintiff creditor, potentially up to full coverage of its claim, including the legal costs. Any surplus will be distributed according to the rectified schedule of claims.

What is the procedure for asserting my claim?
Both types of challenges of the schedule of claims must be filed with the court at the place of bankruptcy. This jurisdiction is mandatory, exclusive, and also binding in international relations. The Lugano Convention does not apply.

The law provides for a twenty-day period from the public availability of the schedule of claims, within which the creditor must sue. This period is a forfeiture period.
According to the Code of Civil Procedure, there is no conciliation procedure. The creditor must file the action directly with the court. Depending on the amount in dispute, the simplified procedure (disputed amount up to CHF 30,000) or the ordinary procedure (disputed amount over CHF 30,000) apply to the challenge of the schedule of claims.

Where the amount in dispute is at least CHF 10,000, the decision may be challenged with an appeal. Where the amount in dispute is lower, the decision may be challenged with a complaint to the upper cantonal authority. A referral to the Federal Supreme Court is generally possible if the amount in dispute exceeds CHF 30,000.

Procedural error in preparation of the schedule of claims
The schedule of claims can also be appealed to the supervisory authorities with a complaint pursuant to Art. 17 et seq. DEBA. However, the appeal can only be made in cases where a challenge of the schedule of claims is not possible. Complaints may allege infringement of procedural rules relating to the preparation of the schedule of claims and the publication of the schedule of claims. Examples of this are the violation of procedural requirements such as insufficient publication of the schedule of claims and incompleteness or ambiguity of the schedule of claims. The complaint period is ten days from the publication of the schedule of claims.

If you have any further question our Insolvency Law Team and Litigation Team will be happy to help you.

Authors: Desirée Dietlin, Claudia Walz

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