Facts
In four debt collection proceedings initiated by the Swissimmobil 61 Real Estate Fund, the Swissimmobil Series D Real Estate Fund, the Swissimmobil New Series Real Estate Fund, and the Interswiss Real Estate Fund against the Swiss Credit Institution, the Debt Collection Office Zurich 1 served the payment orders on the debtor on December 16, 1988.
The Swiss Credit Institution filed a complaint with the District Court of Zurich and argued that the real estate funds initiating the debt collection proceedings lacked active debt collection capacity. The District Court upheld the complaints, declared the four debt collection proceedings null and void, and revoked them.
The four real estate funds have filed an appeal with the Debt Collection and Bankruptcy Chamber of the Federal Supreme Court, requesting that the payment orders be reinstated in all debt collection proceedings.
Considerations
The Federal Supreme Court first establishes that an investment fund does not have active debt collection capacity. The appellants argue that in the event that the fund management fails to fulfill its contractual obligations properly, Art. 23 para. 1 of the Federal Act on Collective Investment Schemes (CISA) provides that the individual investor can sue for performance, and Art. 23 para. 2 CISA allows a claim for inclusion in the investment fund. However, the Federal Supreme Court holds that this does not necessarily mean that the fund itself is the creditor.
The Federal Supreme Court also rejects the appellants' view that only a party who is actively legitimized in a potential claim proceedings can appear as a creditor in the debt collection proceedings.…