Appeal of an admitted creditor against the dismissal of its liability action

Facts

X. SA was admitted as a creditor in the 5th rank in the bankruptcy of Intertest AG with a claim of 201,000 francs. X. SA was assigned the rights of liability action against the members of the board of directors of Intertest AG by the bankruptcy estate. X. SA then brought a liability action against these persons. The cantonal court dismissed this action on the grounds that X. SA lacked standing to sue, as its claim would have been wrongly admitted to the schedule of liabilities. X. SA appealed against this judgment.

Considerations

The DFC allows the appeal. It considers that the creditor admitted to the schedule of liabilities, to whom the bankruptcy estate has assigned the rights of liability action, can only be opposed by the defendants that its claim would have been wrongly admitted to the schedule of liabilities. The cantonal court could not call into question the validity of the ranking of X. SA's claim in the context of the liability action assigned by the bankruptcy estate.

Indeed, the assignment of the disputed rights under Art. 260 DEBA only concerns a procedural right, the assigned rights remaining in the assets of the bankruptcy estate. The assignee is simply empowered to assert these rights in its own name and at its own risk, without the validity of its ranked claim being able to be called into question.

Only the creditors of the…