Lifting of the corporate veil in the allocation of party roles in objection proceedings (Art. 106 ff. DEBA); abuse of rights as basis for reverse piercing of the corporate veil; dismissal of the appeal

Facts

The Debt Enforcement Office Horw informed the appellant, [A. AG] , by letter of 6 December 2018 that [B.] (debt enforcement no. xxx) and [C. AG] in liquidation (debt enforcement no. yyy) had disputed the appellant's ownership claims to items seized from the debtor [E.] . It set a time limit of twenty days under Art. 107/109 DEBA for her to bring recognition actions, failing which she would be deemed to have waived them.

The appellant challenged these decisions before the Kriens District Court on 24 December 2018 and requested that the role of plaintiff be assigned to [B.] and [C. AG] and that the role of defendant as third-party claimant be assigned to herself. The Kriens District Court dismissed the appeal by decision of 18 December 2019 and assumed a reverse piercing of the corporate veil: due to the dominant position of the debtor [E.] , the assets were to be attributed to him despite their formal appearance of ownership by the appellant. It based this on arrest-objection decisions that were notorious to the authorities.

The appellant appealed to the Lucerne Cantonal Court on 3 January 2020, which granted suspensive effect to the appeal on 13 January 2020. By decision of 31 March 2020, the Cantonal Court declined to hear the appeal for the most part for lack of sufficient reasoning and otherwise dismissed it in alternative considerations. It instructed the Debt Enforcement Office to set the appellant a new time limit under Art. 107/109 DEBA.

The appellant, acting through her sole member of the board of directors, [E.] , filed a civil law appeal with the Federal Supreme Court on 6 May 2020. She requested that the decision be set aside and that a time limit be set for [B.] and [C. AG] ; in the alternative, remittal. By order of 6 July 2020, the Federal Supreme Court restored suspensive effect. It did not obtain any responses.

The disputed items were arrested real estate, bank accounts, a bank safe deposit box and a vehicle, which were formally registered in the appellant's name. The appellant alleged a violation of Art. 108 DEBA.

Considerations

The civil law appeal is admissible against the contested decision (Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. c, Art. 75, Art. 90, Art. 100 para. 2 lit. a FSCA). The appeal could be written in Italian (Art. 42 para. 1 FSCA), but the decision is issued in German (Art. 54 para. 1 FSCA). The findings of fact are binding unless they are manifestly incorrect (arbitrary) or based on a violation of law (Art. 105 para. 1, Art. 97 para. 1 FSCA); the strict principle of complaint applies (Art. 106 para. 2 FSCA).

The appellant first complained about the requirements for reasoning. The Federal Supreme Court held that the DEBA contains no express reasoning requirements, but Art. 20a para. 2 no. 2 DEBA does not assist the appellant, since it regulates the establishment of facts ex officio and may precisely establish a duty of the parties to cooperate (and thus a duty to give reasons). An arbitrary application of § 27 EGDEBA was not demonstrated. The different objects of challenge (decisions of the debt enforcement offices brought before the District Court, compared with the district court's extensively reasoned decision brought before the Cantonal Court) justify different requirements. The absence of legal representation does not lower the cantonal requirements for reasoning. Excessive formalism or a violation of the right to be heard does not exist.

An arbitrary application of Art. 56 CPC is likewise not present. The court's duty to ask questions does not relieve a party of the obligation to provide adequate reasoning, and inadequate reasoning is not a curable defect within the meaning of Art. 132 para. 1 CPC. The appellant merely repeated her view without engaging with the Cantonal Court's criticism of the failure to address reverse piercing of the corporate veil; the Cantonal Court was entitled to regard a mere repetition of one's own legal position as insufficient.

On the merits, piercing the corporate veil is an expression of the general prohibition of abuse of rights (Art. 2 para. 2 CC) and also applies in the preliminary proceedings under Art. 106 ff. DEBA (BGE 144 III 541 consid. 8.3 and 8.4). Although legal questions are to be examined only restrainedly in preliminary proceedings (BGE 123 III 367 consid. 3b), this does not preclude taking clear abuse of rights into account, even where it arises from a summary procedure…