Facts

Parties and Instances: The appellant [A.] (represented by lawyer Dr. Marco Colombini) challenged the decision of the Schaffhausen Debt Collection and Bankruptcy Office. The prior instance was the Obergericht of the Canton of Schaffhausen acting as supervisory authority in debt enforcement and bankruptcy matters (decision of 30 December 2020, 93/2019/9).

Facts: On 20 June 2017, bankruptcy proceedings were opened against [B.] . By order of 4 September 2017, the Kantonsgericht Schaffhausen ordered summary bankruptcy proceedings. On 23 October 2017, the appellant filed with the bankruptcy office a claim of ownership to 33 registered shares (Nos. 67 to 99) of [C. AG] that were not included in the inventory of 7 July 2017. On 24 January 2018, the bankruptcy office included the shares in the inventory; the location of the certificated shares was unknown, and the inclusion was based on various share registers.

Decision: By decision of 24 January 2018, the bankruptcy office rejected the claim of ownership and, pursuant to Art. 242 para. 2 DEBA, set the appellant a time limit of 20 days to bring an action.

Prior Proceedings: On 17 June 2019, the appellant filed a complaint with the Obergericht and requested, among other things, a declaration that the decision of 24 January 2018 was null. The Obergericht dismissed the complaint on 30 December 2020 and found no nullity. It reasoned that, given the unclear and disputed possession relationships, the decision was not seriously and obviously defective; moreover, the creditors had an overriding interest in legal certainty. The appellant should have challenged the (possibly incorrect) decision by complaint within the time limit of Art. 17 para. 2 DEBA, which he allowed to lapse unused.

Appeal: By civil law appeal of 11 January 2021, the appellant requested that the Obergericht's decision be set aside and that the decision of 24 January 2018 be declared null. He argued that the original certificates were no longer available, so that an uncertificated right and thus a contest among competing claimants existed, in which the bankruptcy administration had exceeded its powers. The Obergericht waived a response; the bankruptcy office requested dismissal. In parallel, the appellant had filed a separation action with the Kantonsgericht on 14 February 2018 (proceedings 5A_539/2021).

Considerations

Admissibility: The civil law appeal is available against the decision of a cantonal supervisory authority concerning the setting of a time limit under Art. 242 para. 2 DEBA as an act of the debt enforcement office, irrespective of the amount in dispute (Art. 19 FSCA in conjunction with Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. c, Art. 75 para. 1 FSCA). The unsuccessful appellant is entitled to appeal (Art. 76 para. 1 lit. b FSCA). Violation of federal law may be complained of (Art. 95 lit. a FSCA); the Federal Supreme Court bases its decision on the facts established by the prior instance (Art. 105 FSCA).

Nullity versus Challengeability: Acts of enforcement authorities are null only if they violate provisions enacted in the public interest or in the interest of persons not party to the proceedings (Art. 22 para. 1 DEBA). Defective acts are generally challengeable (Art. 17 DEBA); nullity applies only in cases of particularly serious defects. The supervisory authority may find nullity at any time, but where the act is challengeable, adequate legal protection is available through a complaint.

Requirement of Time Limit and Possession: The bankruptcy administration may dispose of the surrender of movable property and set a time limit for an action under Art. 242 para. 2 DEBA if the property is in the exclusive possession of the estate. Possession is the direct factual control over an item. Securities made out to the third-party claimant are not in the possession of the estate, even if they are located with the bankrupt debtor, because disposition requires the cooperation of the holder.

No Contest among Competing Claimants: Uncertificated claims or rights are not to be decided in separation proceedings; in such a case the bankruptcy administration exceeds its powers. In the present case, however, the matter concerns entitlement to certificated registered shares as securities (Art. 967 CO),…