Subsequent Assertion of a Lien in the Bankruptcy of Profinanz AG

Facts

Metro Bank AG in liquidation filed a claim for a secured debt of CHF 115,525.75 in the bankruptcy of Profinanz AG. The bankruptcy administration of Profinanz AG rejected the request, as the schedule of claims had already become legally binding. Metro Bank AG then filed a complaint with the Commercial Court of the Canton of Zurich, which was dismissed. Metro Bank AG then appealed to the Debt Enforcement and Bankruptcy Chamber of the Federal Supreme Court.

Considerations

The Federal Supreme Court held that the subsequent assertion of the lien would generally be inadmissible, as this would constitute a modification of the legally binding schedule of claims. However, the legal force of the schedule of claims cannot be opposed to the consideration of the subsequent assertion of the lien claim if the creditor was not entitled to assert the avoidance claim at the time of the opening of the bankruptcy.

In the present case, Metro Bank AG could only assert the avoidance claim after the confirmation of the composition agreement on September 29, 1975. Until that time, the…