Facts

Parties:

  • Appellant: [A. GmbH] in liquidation, represented by attorney Yann Moor
  • Respondent: Association [B.]

Facts:

  • The association [B.] pursued [A. GmbH] with a payment order for CHF 400.-- plus interest.
  • The single court of the district court of Dietikon opened bankruptcy proceedings against [A. GmbH] on October 28, 2020.
  • [A. GmbH] in liquidation filed an appeal against this decision on November 16, 2020, which the higher court of the canton of Zurich dismissed by judgment of November 26, 2020.
  • The appellant requested the Federal Supreme Court to annul the higher court's decision and the opening of bankruptcy proceedings.
  • The Federal Supreme Court granted the appeal suspensive effect, so that the bankruptcy remains open, but no enforcement measures may be taken during the federal court proceedings.

Considerations

Admissibility of the appeal:

The appeal in civil matters is generally admissible (Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. d, Art. 75, Art. 76, Art. 90, Art. 100 para. 1 FSCA). The appellant can in particular allege the violation of federal law (Art. 95 lit. a FSCA).

Prerequisites for the annulment of the bankruptcy opening:

The appellate court may annul the opening of bankruptcy proceedings if the debtor first settles the debt or the creditor waives the enforcement of the bankruptcy and second proves his solvency (Art. 174 para. 2 DEBA). The lower court considered the settlement as proven, but not the proof of solvency.

Proof of solvency:

A fact is proven if certain elements speak for its existence, even if the court still considers the possibility that it may not have materialized (ATF 140 III 610 E. 4.1; 132 III 715 E. 3.1). The solvency of the bankrupt must be more likely than his insolvency. The debtor must present evidence suitable to make his solvency appear…