Facts
In the bankruptcy of Adolf Steuble, who was professionally engaged in debt collection and the division of inheritances, the Brülisauer heirs' community claimed that a bank account belonged to them according to Art. 401 CO. However, the Bankruptcy Office Appenzell rejected the claim for exclusion, as it was a current account with commingled assets and it could not be proven that the assets claimed for return were identical to those received by Steuble on behalf of the Brülisauer heirs' community.
The Brülisauer heirs' community filed a complaint against the decision of the Bankruptcy Office. However, the cantonal supervisory authority did not enter into the complaint. The Federal Court dismissed the appeal of the Brülisauer heirs' community.
Considerations
The Federal Court first established that the disputed bank account was not a claim embodied in a security, but an ordinary claim. If a third party claims that such a claim does not belong to the debtor in bankruptcy, but to him, and the bankruptcy administration considers this claim to be unfounded, the procedure according to Art. 242 para. 2 DEBA is not applicable.
However, the Bankruptcy Office had not set a deadline for the Brülisauer heirs' community to file a claim for the establishment of their claim, but had merely informed them that it would proceed with the distribution regardless of the claim for exclusion if a lawsuit was not filed within 20 days. This did not constitute a decision within the meaning of Art. 17 DEBA, but merely a non-binding invitation to promptly initiate any possible lawsuit.
The supervisory authority also cannot issue an instruction to the Bankruptcy Office to recognize the claim for exclusion or to file a lawsuit for the establishment of the creditor's right of the…