Collocation action

In the collocation plan, all filed claims are listed by bankruptcy creditors to determine the bankruptcy classes. In total, there are three bankruptcy classes, with the claims in the first class being satisfied first and the claims in the third bankruptcy class being satisfied last. Thus, it is advantageous if one's claim is included in the first bankruptcy class. There are rules as to which claims are allocated in each class. There are divergent opinions, however and therefore a possibility to fight against a class allocation. This is done with the help of the collocation action. If a creditor does not agree with the collocation plan, he can sue according to Art. 250 of the Swiss Debt Enforcement and Bankruptcy Law (SchKG). If you want to challenge your class allocation in the collocation plan and need support, our lawyers in St. Gallen, Zurich and Frauenfeld will be happy to help you. With a collocation action, only material errors of the bankruptcy administration can be challenged in the case of non-admission. If, on the other hand, it is a formal error on the part of the bankruptcy administration, a complaint must be filed and not a collocation action. The time limit for an appeal is shorter; only 10 days.

A distinction is made between one’s own collocation action and a third-party collocation action. In one’s own collocation action, the creditor wants the admission of the fully rejected claim or partially rejected claim. It is also possible for the creditor to request a higher ranking. In contrast, in a third-party collocation action, an authorised third-party creditor demands the dismissal of the entire claim of a co-creditor or the dismissal of a partial amount.

If a creditor or a third-party creditor decides to contest the collocation plan, he must file the claim with the bankruptcy court within 20 days. As soon as the action has been filed, the pendency of the proceedings has been established.

It may be that the collocation action is excluded and there is no possibility to challenge the collocation plan. Hence, it is crucial to check whether a special legal relationship of this kind exists. For example, a collocation action is excluded if: the claim is in process at the time of the opening of bankruptcy proceedings, if they are claims under public law, if they are highly personal claims against bankrupts or in the case of mass liabilities. The attorneys of Teichmann International in St. Gallen, Zurich and Frauenfeld will be happy to assist you with any difficulties or questions you may have regarding bankruptcy and a collocation action.

Contrary to a collocation action, the defendant, i.e. the administration, may raise the following procedural or substantive defences and objections. The defendant is entitled to invoke all defences which the debtor is also personally entitled to invoke. In addition, it is possible to raise the objection that the disputed claim has retroactively subsided and therefore no longer exists. It is also possible to object that the collocation order is invalid. This is the so-called indefinite plea of collocation, originating in tort law.

If the collocation action is approved by the competent authority, it necessitates a change in the collocation plan.

If you have any questions or other concerns, the attorneys at Teichmann International will be happy to assist you in St. Gallen, Zurich and Frauenfeld.