Obligation of the assignee creditor to report on foreign avoidance proceedings pursuant to Art. 260 DEBA

Facts

Parties and procedural history:

The complainant [B.] is a creditor of the [C. AG] , which is in liquidation. In the course of the bankruptcy proceedings concerning the [C. AG] , the bankruptcy office of the Albula region assigned to him various legal claims within the meaning of Art. 260 DEBA on 21 November 2014, including avoidance claims pursuant to Art. 285 et seq. DEBA against the [A. GmbH] , the [K. AG] , the [J.] cooperative and [L.] in Hamburg. The subject of the assignment was thus avoidance claims for the reversal of asset transfers in favour of third parties.

By order of 7 February 2024, the bankruptcy office requested the complainant, under threat of penalty (Art. 222 para. 4 and 6 in conjunction with Art. 324 no. 5 SCC), to report by 20 February 2024 on the proceedings based on the assignment against [L.] in Germany. The complainant filed an appeal with the Court of Appeal of Grisons on 16 February 2024 and requested the annulment of the order and the granting of suspensive effect. The Court of Appeal granted the appeal suspensive effect by order of 19 February 2024. In its statement of 29 February 2024, the bankruptcy office requested the dismissal of the appeal. By decision of 24 June 2024, the Court of Appeal dismissed the appeal.

The complainant then filed an appeal in civil matters with the Federal Supreme Court on 11 July 2024 and requested the annulment of both the cantonal court decision and the order of the bankruptcy office. He also requested that the matter be referred back to the Court of Appeal. The appeal was supplemented on 31 July 2024. By presidential order of 2 August 2024, the Federal Supreme Court granted the appeal suspensive effect. The Federal Supreme Court took the files without requesting statements.

Considerations

Admissibility of the appeal:

The Federal Supreme Court first examines the admissibility of the appeal. The appeal of 11 July 2024 was filed in a timely manner, as the contested decision was served on 1 July 2024 and the appeal period of 30 days pursuant to Art. 100 para. 2 lit. a FSCA was complied with. The supplement to the appeal of 31 July 2024, however, was late and is not taken into consideration. The appeal is thus admissible only insofar as it was filed in a timely manner.

Legal nature of the assignment pursuant to Art. 260 DEBA and obligation to report:

The complainant disputes that he is obliged to report on the avoidance proceedings conducted in Germany, as a foreign avoidance judgment is not recognisable in Switzerland (BGE 129 III 683 and 140 III 320 para. 6.3). The Federal Supreme Court rejects this argument and states that the assignment pursuant to Art. 260 DEBA is not a civil law institution, but rather a sui generis enforcement and procedural law instrument. Although the assignee creditor acts in his own name, on his own account and at his own risk, he does not become the holder of the assigned claim. This remains with the bankruptcy estate. Pursuant to Art. 260 para. 2 DEBA, the assignee creditor is obliged to report the outcome of his efforts to the bankruptcy administration and to surrender any surplus. This obligation exists regardless of whether the proceedings are conducted in Switzerland or abroad or whether any judgment could be recognised in Switzerland. The obligation to report is set out in item 2 of the assignment order of 21 November 2014 and also follows from standard form no. 7 K. The complainant must fulfil this obligation without being requested to do so, and the bankruptcy office may request a report if he fails to comply with this obligation.

Legal basis for the request to report:

The complainant argues that the obligation to report is governed solely by Art. 260 DEBA and not by Art. 222 para. 4 DEBA. Moreover, he claims that there is no legal basis for the penalty threat pursuant to Art. 222 para. 6 DEBA in conjunction with Art. 324 no. 5 SCC. The Federal Supreme Court rejects these objections and states that Art. 222 para. 4 DEBA obliges third parties who hold assets of the debtor or in whose hands the debtor has claims to provide information and surrender such assets. The assignee creditor, as the holder of an assigned asset (the avoidance claim), is a third party within the meaning of this provision. The obligation of the assignee creditor to provide information and surrender assets serves to protect the interests of the creditors and the bankruptcy estate. The application of Art. 222 para. 4 DEBA and the penalty threat are thus lawful. Although…