Rejection of the Late Rectification of a Claim by a Secured Creditor

Facts

The Swiss Cantonal Bank (the bank) asserted a mortgage claim in the context of the forced realization of a property. However, it initially filed a claim for a lower amount and only rectified the amount after the expiry of the 20-day filing deadline provided for in Art. 138 para. 2 no. 3 DEBA. The debt collection and bankruptcy court rejected this late rectification. The bank appealed against this decision.

Considerations

The Federal Court dismissed the bank's appeal. It considered that the filing deadline of Art. 138 para. 2 no. 3 DEBA is a preclusive deadline that does not allow for exceptions, even if the claim was filed for a too low amount due to an error. The Court recalled that the case law has only admitted exceptions to this principle in specific cases, such as when the rights were registered in the land register or brought to the attention of the debt collection office before the expiry of the deadline. In the present case, it was a simple internal error of the bank, without the interests of other creditors being affected.

Furthermore, the Court considered that the debtor's challenge to the claim included in the schedule of claims only prevents the entry into…