Facts
P. Sch. was subject to ordinary debt collection proceedings by way of seizure or bankruptcy initiated by the Cantonal Bank of St. Gallen on 8 August 1994. The debtor objected to the payment order with the cantonal debt collection and bankruptcy supervisory authority of Appenzell Ausserrhoden, requesting that the payment order be replaced by a payment order in the context of realisation of a pledge proceedings, on the grounds that the claim being pursued was secured by a mortgage. The cantonal authority rejected the objection. The appeal filed by the debtor against this decision was not considered by the Debt Collection and Bankruptcy Chamber of the Federal Supreme Court, on the grounds that the appeal deadline had been exceeded.Considerations
According to case law, the fact that ordinary debt collection proceedings by way of seizure or bankruptcy are initiated instead of the realisation of a pledge proceedings provided for in Art. 41 para. 1 DEBA does not result in the nullity of the proceedings. This situation is simply subject to appeal to the supervisory authority. The debtor must therefore challenge the payment order within the 10-day deadline provided for in Art. 17 para. 2 DEBA, and file his appeal…