Facts
In the bankruptcy of Aquasana AG in Fideris, the bankruptcy office in Jenaz initially prepared a schedule of claims that was not contested by the mortgage creditors. At the first auction, the hotel property of Explica AG was awarded, but the payment conditions were not fulfilled. Thereupon, the bankruptcy office prepared a new schedule of claims, in which the order of priority of the mortgage rights was presented differently.
The Spar- und Leihkasse Schmerikon in Liq. and Harry Beuret filed a complaint against the new schedule of claims. The cantonal supervisory authority dismissed the complaint of the Spar- und Leihkasse Schmerikon in Liq. and did not enter into Beuret's complaint due to delay.
Beuret appealed the decision of the cantonal supervisory authority to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the schedule of claims as part of the collocation plan can be contested by a lawsuit within the deadline of 10 days after public announcement of the filing. However, the filing of the revised schedule of claims was not publicly announced, but only communicated to the participating mortgage creditors.
Since the amendment of the schedule of claims only concerned the order of priority between the builder's liens and the contractual mortgage rights, this notification to the parties involved was sufficient. The deadline for contesting the revised schedule of claims therefore began on the date of filing, i.e. September 26, 1969.
The Federal Supreme Court considers the subsequent amendment of the schedule of claims…