Collocation plan in summary bankruptcy proceedings: hearing of the bankrupt debtor on creditor claims as a mandatory duty of the bankruptcy office

Facts

Parties and instances: The appellant is a member of the board of directors with sole signing authority of [B. AG] (bankrupt company) and at the same time a creditor of the company. He is represented by a lawyer. The opposing party is the Bankruptcy Office of the Canton of Thurgau. The prior instance was the Obergericht of the Canton of Thurgau as cantonal supervisory authority for debt enforcement and bankruptcy.

Bankruptcy proceedings: After unsuccessful composition proceedings, the District Court of Weinfelden opened bankruptcy proceedings over [B. AG] on 2 August 2017. The bankruptcy is conducted in summary proceedings.

Collocation plan: On 16 May 2019 the bankruptcy office served the appellant with two collocation decisions, and on 24 May 2019 it published the public inspection of the collocation plan in the SHAB and in the Official Gazette of the Canton of Thurgau. The inspection period was 20 days (expiring 17 June 2019), and the period for challenging the inventory was 10 days (expiring 6 June 2019). The collocation plan was open for inspection from 28 May to 17 June 2019.

Cantonal proceedings: On 7 June 2019 the appellant filed a complaint with the Obergericht and requested the complete annulment of the collocation plan. On 26 September 2019 the Obergericht dismissed the complaint insofar as it was admissible and left open the question of current legal interest in protection.

Subject matter before the Federal Supreme Court: The appellant requested annulment of the decision of the Obergericht and remittal to the prior instance; in the alternative, annulment of the collocation plan. The bankruptcy office and the Obergericht requested dismissal. Suspensive effect was granted by order of 30 October 2019. Central question: what role the bankrupt debtor plays in the examination of creditor claims, in particular whether the appellant had to be heard as an organ and whether he has a legal interest in protection.

Considerations

Admissibility: The civil law appeal is available against the decision of the sole cantonal supervisory authority on a collocation plan prepared by the bankruptcy office (Art. 19 in conjunction with Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. c and Art. 75 FSCA). The appellant, as creditor and organ of the bankrupt company, is particularly affected and has standing (Art. 76 para. 1 lit. b FSCA). Violations of federal law may be raised (Art. 95 lit. a FSCA); constitutional rights are subject to the principle of complaint (Art. 106 para. 2 FSCA).

Duties of the bankruptcy office: Creditors must file their claims within one month of the call for claims (Art. 232 para. 2 no. 2 DEBA). The bankruptcy office examines the claims in summary fashion and obtains and records the statement of the bankrupt debtor on each bankruptcy claim (Art. 244 DEBA, Art. 55 BOPO). If the bankrupt debtor is a corporation, an organ must comment (Art. 30 para. 1 BOPO). The hearing is not at the discretion of the bankruptcy office, but its violation does not render the collocation plan null and void at any time. It constitutes a procedural defect that can be challenged by complaint under Art. 17 DEBA. The bankrupt debtor may also object to it. Annulment, however, requires showing that the debtor's statements might have led the bankruptcy office to a different decision. The debtor has no right of complaint if his objection is not taken into account.

Application to the case: The Obergericht assumed that the hearing could only have influenced the classification of further claims in the first class, and that the appellant had not shown that claims were wrongly admitted to the first class. The Federal Supreme Court counters that the hearing of the bankrupt debtor must extend to all creditor claims and not only to those filed by the appellant himself. Moreover, in the cantonal proceedings the appellant had specifically disputed several positions, namely the claim of SUVA (existence and secured classification), the VAT claims of the Swiss Federal Tax Administration (counterclaim not taken into account), as well as the claims of the Spida AHV compensation fund and the OPA foundation. Whether these claims are justified is not to be examined; decisive is that the hearing might have affected the outcome. Undifferentiated submissions (such as regarding wage claims of 'a large part' of the employees, or regarding the asset side and lack of collection activity) were, however, not sufficient.

Legal interest in protection: The Obergericht violated…