Facts
On 21 October 2011, the single judge of the district court of Kreuzlingen opened the bankruptcy proceedings of company Y. AG, which became X. AG, at the request of company Z. AG. Company X. AG lodged an appeal against this decision and requested the cancellation of the opening of the bankruptcy proceedings. The cantonal court dismissed the appeal. Company X. AG then lodged a civil law appeal with the Federal Court.
The disputed issue is whether the notice of the bankruptcy hearing can be considered as notified to company X. AG. The cantonal court estimated that company X. AG should have expected a bankruptcy request from company Z. AG and therefore applied the fiction of notification, according to which the notification is deemed to have taken place on the seventh day after the unsuccessful attempt at notification.
Considerations
The Federal Court examined the issue of the fiction of notification of the bankruptcy hearing notice. According to Article 138 para. 3 let. a of the Code of Civil Procedure (CPC), the fiction of notification only applies if the recipient should have expected the notification. The Federal Court considered that the bankruptcy procedure is a new trial that does not automatically result from the debt collection procedure.
The Federal Court also examined the issue of the debtor's responsibility to take note of the notification. According to case law, the debtor is not required to take note of the notification before the trial is initiated. The Federal Court therefore considered that company X. AG was not required to take note of the notice of the bankruptcy hearing before the trial was initiated.
The Federal Court concluded that the fiction of notification of the bankruptcy hearing notice was not applicable in this case. Company X. AG had not received the notice of the bankruptcy hearing and the notification…