Facts
In bankruptcy proceedings of the company Para A.G. in Rapperswil, the company Alpinapharm A.G. was colloquated with a secured claim. The Leih- und Sparkasse vom Linthgebiet was also colloquated as a secured creditor. After the sale of the encumbered property, the proceeds of the sale fully covered the claims of these two secured creditors.
In the distribution of the sale proceeds, the bankruptcy office set off the claims of the Leih- und Sparkasse, which had been assigned as security by the bankrupt company prior to the bankruptcy, against the share due to the company Alpinapharm A.G. in the proceeds of the sale. Alpinapharm A.G. contested this setoff, considering that these were not claims of the bankruptcy estate.
Considerations
The Debt Enforcement and Bankruptcy Chamber (Chambre des poursuites et des faillites) considered that the claims assigned as security could not be set off against the claim of the company Alpinapharm A.G. in the collocation proceedings, as they did not yet belong to the bankrupt company's assets at the time the collocation schedule was drawn up. However, after the retrocession of these claims, they became claims of the bankrupt company again, thus allowing their setoff against the claim of the company…