Dismissal of appeals against the annulment of the bankruptcy order due to unknown place of residence and late recusal requests

Facts

Parties and procedural history:

The appellant (creditor) filed a bankruptcy petition without prior debt enforcement against the respondent (debtor) pursuant to Art. 190 DEBA with the Bern-Mittelland Regional Court on 10 June 2024. The Regional Court ordered bankruptcy over the debtor on 14 August 2024, with the decision publicly announced on 21 August 2024.

The debtor appealed to the High Court of the Canton of Bern on 2 September 2024, which, with a decision dated 4 December 2024 (ZK 24 359), annulled the bankruptcy order and dismissed the petition for bankruptcy. The appellant then filed a revision petition on 12 December 2024, alleging bias on the part of Judge [C.] . The High Court declined to entertain the revision petition with a decision dated 16 December 2024 (ZK 24 501).

On 22 January 2025, the appellant filed two civil appeals with the Federal Supreme Court (5A_66/2025 against the decision of 4 December 2024 and 5A_67/2025 against the decision of 16 December 2024). The appellant sought the annulment of both decisions and the remittal of the matter to the lower court for reopening of the bankruptcy proceedings. The Federal Supreme Court also dismissed a request for interim measures (Art. 104 FSCA) to register an inventory of assets (Art. 162 DEBA).

Key issues in the proceedings:

• Admissibility and merits of the bankruptcy petition without prior debt enforcement pursuant to Art. 190 para. 1 no. 1 DEBA (unknown place of residence of the debtor).
• Jurisdiction of the High Court to rule on a subsequently asserted recusal request against a judicial officer.
• Late assertion of recusal grounds and their forfeiture.
• Assessment of evidence and duty to provide reasons by the High Court in the appeal against the bankruptcy order.

Considerations

1. Procedural preliminary questions:

The Federal Supreme Court joined the two appeal proceedings (5A_66/2025 and 5A_67/2025) as they concerned the same facts and parties. The appeal against the High Court’s decision of 16 December 2024 (revision proceedings) was dismissed as unfounded since the appellant had asserted the recusal of Judge [D.] out of time. The appeal against the decision of 4 December 2024 (bankruptcy order) was also dismissed as the High Court had correctly denied the conditions for a bankruptcy order due to an unknown place of residence.

2. Recusal requests against judicial officers:

The Federal Supreme Court confirmed the case law that a subsequently asserted ground for recusal against a judicial officer, raised after the decision but still within the appeal period, must be pursued through the appeal process rather than by way of revision. An exception applies only if the ground for recusal was already known before the conclusion of the proceedings. The appellant had not asserted the recusal of Judge [C.] in a timely manner, and the submissions against Judge [D.] were unsubstantiated and late. Moreover, there were no objectively justified grounds for assuming bias.

3. Bankruptcy order due to unknown place of residence:

The Federal Supreme Court confirmed that the creditor bears the burden of proof for establishing the bankruptcy ground of an unknown place of residence pursuant to Art. 190 para. 1 no. 1 DEBA. The place of residence is unknown if it cannot be determined despite reasonable and appropriate investigations. The High Court had correctly…