Dismissal of the appeal against the threat of bankruptcy

Facts

Parties: Appellant: [A. AG] , represented by attorney Dr. Reto Strittmatter and/or attorney Lara Gachnang. Respondent: [B.] , represented by attorney Marc Weber.

Courts: District Court of Weinfelden, Higher Court of the Canton of Thurgau, Federal Supreme Court (II. Civil Division).

Dates: Payment order served on November 3, 2020, legal objection by [A. AG] , provisional legal opening on March 17, 2021, revocation claim on April 14, 2021, threat of bankruptcy on June 17, 2022, decision of the Higher Court on January 30, 2023, decision of the Federal Supreme Court on November 29, 2023.

Main issue: [A. AG] appeals against the threat of bankruptcy, which follows a late continuation request by [B.] . [A. AG] argues that the revocation claim was filed late and therefore no interruption of the deadline occurred, rendering the payment order invalid at the time of the threat of bankruptcy.

Considerations

The appeal in civil matters is admissible against the decision of the cantonal supervisory authority on debt enforcement and bankruptcy (Art. 19 DEBA in conjunction with Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. c and Art. 75 para. 1 FSCA). The appellant is entitled to appeal (Art. 76 para. 1 lit. b FSCA).

The previous instance has established that the converted claim under Art. 85a DEBA is not suitable to interrupt the one-year period for the validity of the payment order after the legal opening has been granted. The validity of the payment order has been extended for the duration of the legal opening proceedings and the revocation proceedings until their conversion into a claim under Art. 85a DEBA. The payment order was therefore still valid at the time of the threat of bankruptcy.

The appellant argues that the revocation claim was filed late and therefore no interruption of the deadline occurred. The Federal Supreme Court examines…