Facts
Bank [X.] requested the opening of bankruptcy proceedings against [Y. AG] on February 4, 2005. The debtor paid the amounts listed in the bankruptcy notice, plus collection costs, on the day before the scheduled hearing. The bankruptcy judge dismissed the bankruptcy request. Bank [X.] appealed, which was dismissed by the Higher Court. The Court of Cassation overturned the decision and remanded the case for reconsideration. The Higher Court again dismissed the appeal and confirmed the bankruptcy judge's ruling. The Court of Cassation dismissed the appeal of nullity.
Bank [X.] requests the Federal Supreme Court to overturn the Court of Cassation's decision and open bankruptcy proceedings against [Y. AG] . [Y. AG] has not commented.
Considerations
The Federal Supreme Court examines the appeal in civil matters and finds that the bankruptcy judgment is a decision in debt enforcement and bankruptcy matters, which is subject to appeal in civil matters. The appeal is admissible since the decision of the bankruptcy court is a final decision.
The Federal Supreme Court addresses the legal question of the appealability of the decision of the higher cantonal court issued before the entry into force of the FSCA and finds that the Higher Court's decision is appealable. The federal law issues presented to the Federal Supreme Court are freely reviewable.
The Federal Supreme Court deals with the description of the costs that the debtor must reimburse to the creditor to avoid bankruptcy. The appellant argues that it is entitled to reasonable compensation for drafting the bankruptcy request and travel expenses. The Court of Cassation acknowledged that the creditor should be relieved of all costs of the debt enforcement procedure but spoke out against party compensation in bankruptcy proceedings.
The Federal Supreme Court finds that party costs are treated as debt enforcement costs and that the dismissal of the bankruptcy request due to payment presupposes the regulation of debt enforcement…