Suspension of bankruptcy proceedings due to lack of assets – landmark decision on the advance of costs under Article 230 para. 2 DEBA

If bankruptcy proceedings are suspended for lack of assets, the bankruptcy office publishes the suspension. In the publication, it states that the proceedings will be closed if no creditor requests the continuation of the bankruptcy proceedings and provides the security determined for “the portion of the costs not covered by the bankruptcy estate” within ten days (Article 230 para. 2 of the Swiss Debt Enforcement and Bankruptcy Act [“DEBA”]). The Federal Supreme Court has ruled that the costs of realizing pledged assets are not to be taken into account when determining the amount of the security. These costs are not to be covered by the bankruptcy estate but are to be borne by the pledgees. Accordingly, they are not among the costs not covered by the bankruptcy estate within the meaning of Article 230 para. 2 DEBA (FSCD 5A_376/2024 of 6 November 2024; scheduled for publication).