Rejection of the bankruptcy judge's order to deduct the costs of the proceedings from the assets of the bankruptcy estate after the closure of the bankruptcy

Facts

After the closure of the bankruptcy proceedings of A. due to lack of assets, the bankruptcy judge ordered that the procedural costs of 4'100 CHF be deducted from the assets of the estate. However, creditor B. was subject to a garnishment order for claims against A., and the debt collection office mentioned the bankruptcy judge's order in the garnishment record. B. complained to the cantonal supervisory authority, which rejected his complaint. B. then appealed to the Federal Tribunal.

Considerations

According to the case law of the Federal Tribunal, the right of the bankruptcy creditors to seize the assets of the bankrupt debtor expires as soon as the bankruptcy proceedings are closed due to lack of assets, in accordance with Art. 230 para. 1 DEBA. In this case, the creditors who requested the opening of the bankruptcy must bear the costs of the proceedings, as the judge had correctly ordered on March 1, 1976.

However, the order of March 9, 1976, requiring that the costs be deducted from the assets of the estate, is null and void, as there were no more assets after the closure of the bankruptcy on February 24, 1976. This nullity is manifest and serious, so that the debt collection office should have disregarded this order…