SchKG 250 para 2; loco 38; IPRG 148 para 1
facts
On September 3, 2019, the Zurich District Court declared bankruptcy against S. The Altstetten-Zürich bankruptcy office published the table of claims on January 15, 2020. A. Bank B was admitted as another creditor with a third class claim of CHF 437,466.80 pursuant to the judgment of 10 July 2013 by the English Northampton County Court. …
On February 5, 2020, A .__________ filed a (negative) claim against Bank B .________ in the Zurich District Court pursuant to Article 250 para 2 SchKG and requested that their claim be deleted from the claims table. In a judgment dated July 13, 2020, the District Court dismissed the claim in the Schedule of Claims; Bank B’s claim acceptance is confirmed in the claims table. …
stabbed a. With a judgment issued on December 30, 2020, the Supreme Court rejected the appeal and affirmed the judgment issued in the first instance. …
With a submission dated February 8, 2021, A.S. _________ a complaint in civil matters. The complainant requests that the Supreme Court’s ruling be set aside. In this matter, he demands that the claim made by Bank B. ________ (the defendant) be deleted and approved by the Bankruptcy Department in Bankruptcy Claims Schedule C. … »
Federal Court Considerations
According to the Federal Supreme Court (BGer), the plaintiff can take the place of the debtor in the passive collection process Raising the objection to the statute of limitations retroactively against a foreign ruling:
- Application of the law of the country that issued the judgment
- the lapse by statute of limitations One Financial supportspecified in the ruling
- Depends on the law of the sentencing state
- Regardless of
- Whether it is a foreign – here English – law, the statute of limitations is either substantive or procedural in nature.
- Regardless of
- Depends on the law of the sentencing state
- the lapse by statute of limitations One Financial supportspecified in the ruling
- Creditor boycott actions
- The English ruling of July 10, 2013 became enforceable on the same day, which is why the six-year statute of limitations ran until July 10, 2019.
- comply with applicable English law
- On November 27, 2018, B. An application to open a legal right, which was within the deadline under English law.
A could not be heard. , as long as he complained that the 6-year statute of limitations was not respected when filing the legal case:
- Under English law, the lawsuit interrupted the statute of limitations.
Conclusion:
A claim entered in a C corporation bankruptcy case was not prohibited by law and so the lower court could not be accused of violating federal law.
So the federal court had to dismiss the appeal.
Federal Court decision
- The complaint is dismissed to the extent that it can be disposed of.
- The complainant was charged court costs of 6,000 francs.
- The Complainant shall compensate the Defendant for the Federal Court proceedings in the amount of CHF 6,500.
- This judgment shall be communicated to the parties and to the Supreme Court of the Canton of Zurich, Civil Chamber I.
BGer 5A_110 / 2021 from 02.08.2022 = BGE 148 III 420 et seq.
additional information
Section 2: Enforcement
Article 38 Logo
1. Judgments passed in a country bound by this Convention which are enforceable in that country must be executed in another country bound by this Convention if they are declared to be enforceable there at the request of any person having the right.
2. In the United Kingdom, however, such judgment will be enforceable in England and Wales, Scotland or Northern Ireland if it is registered in that part of the United Kingdom on the application of a person having the right to enforce.
Article 250 depa
1 A creditor who wishes to contest the schedule of claims because his claim has been dismissed in whole or in part or is not accepted in the class claimed must file a claim against the estate with the judge at the bankruptcy location within 20 days of appearance to the public. View the claims schedule.
2 If he wishes to challenge the acceptance or rank of another creditor, he must file an action against the creditor. If the judge approves the lawsuit, the amount by which the defendant’s share of the bankruptcy estate is reduced serves to satisfy the plaintiff until his lawsuit, including legal costs, is fully settled. Any surplus will be distributed according to the corrected collection schedule.
3 …
Fourth – the statute of limitations and the end of the case
Article 148 IPRG
1 The statute of limitations and termination of the claim shall be subject to the law applicable to the claim.
2 In the event of compensation, the delay is subject to the right of the claim to be settled.
3 The innovation, assignment and netting contract are based on the provisions of this law regarding the law applicable to contracts (Article 116 et seq.).
source
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