Facts

Parties:

  • Appellant: [A.] , represented by attorney Sarah Eichenberger Caballero
  • Respondent: [B. AG]

Court: Federal Supreme Court, II. Civil Division

Date of judgment: April 4, 2023

Subject: Bankruptcy proceedings, appeal against the judgment of the Zurich Cantonal Supreme Court, II. Civil Chamber, dated August 4, 2022 (PS220108-O/U)

Facts:

  • [A.] was declared bankrupt on June 22, 2022, by the District Court of Meilen at the request of [B. AG] . The creditor's claims amounted to CHF 2,396.50 plus interest and costs.
  • [A.] filed an appeal with the Zurich Cantonal Supreme Court on June 27, 2022, claiming that [B. AG] had verbally assured him that the bankruptcy petition would be withdrawn once the claim was settled.
  • By order of June 29, 2022, the presiding judge of the II. Civil Chamber of [B. AG] set a deadline for the submission of the appeal response and informed [A.] that the costs of the first-instance proceedings and the bankruptcy office must be secured before the expiry of the appeal deadline.
  • [A.] did not collect the order of the Supreme Court but became aware of it in another way. He submitted the security proof of the bankruptcy office on July 15, 2022, after the Federal Supreme Court had not dealt with his appeal.
  • On August 4, 2022, the Supreme Court dismissed the appeal against the bankruptcy decision.
  • [A.] filed an appeal with the Federal Supreme Court on September 9, 2022, requesting the annulment of the Supreme Court judgment and the bankruptcy decision.

Considerations

1. The Federal Supreme Court has jurisdiction, as it concerns an appeal in civil matters against a decision of the highest cantonal court (Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. d and Art. 75 para. 1 FSCA). The appellant is particularly affected by the challenged decision and is therefore entitled to appeal (Art. 76 para. 1 lit. b FSCA).

2. The appellant can in particular allege a violation of federal law (Art. 95 lit. a FSCA). The Federal Supreme Court bases its judgment on the facts established by the previous instance (Art. 105 FSCA). New facts and evidence are only admissible to the extent that the decision of the previous instance gives rise to them (Art. 99 para. 1 FSCA).

3. The issue is the timely assertion of a ground for annulment of bankruptcy. The appellant settled the claim including interest and costs before the bankruptcy proceedings, but only secured the costs of…