When a debtor is declared bankrupt, creditors must file their claims with the bankruptcy administration within the legal deadlines to have any chance of recovery. The filing procedure, governed by arts. 232 et seq. of the Swiss Debt Enforcement and Bankruptcy Act (DEBA), is strictly formal. PBM Avocats represents creditors at every stage of the ranking process, from the initial filing to contesting the schedule of claims, from Geneva and Lausanne.
The Call for Creditors (art. 232 DEBA)
Upon the opening of bankruptcy, the bankruptcy administration publishes a call for creditors in the Swiss Official Gazette of Commerce (SOGC) and in cantonal official gazettes (art. 232 DEBA). This notice states:
- The identity of the bankrupt debtor;
- The court that declared the bankruptcy and the date of the judgment;
- The deadline for filing claims (generally one month from publication);
- The contact details of the bankruptcy administration with which claims must be filed.
Creditors known to the bankruptcy administration are also individually notified by letter. However, it remains each creditor's responsibility to monitor official publications and file within the prescribed deadline.
The Proof of Claim: Content and Supporting Documents
The proof of claim must state (art. 244 DEBA):
- The amount of the claim in principal, accrued interest and costs;
- The basis of the obligation (contract, judgment, law, etc.);
- Any security held by the creditor (pledge, surety, right of retention, assignment by way of security);
- The priority class claimed (1st, 2nd or 3rd class).
It is essential to attach all supporting documents: contracts, invoices, confirmations, judgments, relevant correspondence. The more complete the file at the time of filing, the faster the processing and the higher the chances of full admission. Our lawyers prepare complete and well-argued proofs of claim to maximise your recovery prospects.
The Schedule of Claims and Priority Classes (arts. 244 et seq. DEBA)
Based on the claims filed, the bankruptcy administration draws up the schedule of claims, which distributes admitted claims into three classes according to art. 219 DEBA (see also the page on bankruptcy procedure). Each creditor receives notification of the decision regarding their claim: full admission, partial admission or rejection with reasons.
The schedule of claims is then deposited for inspection at the bankruptcy administration's offices. From that deposit, the 20-day deadline runs for bringing a contestation action (art. 250 DEBA). The bankruptcy administration notifies creditors of the date on which the schedule becomes available for inspection.
Contesting the Schedule of Claims (art. 250 DEBA)
Any creditor may contest the schedule of claims within 20 days of it being made available for inspection, by filing a contestation action (art. 250 DEBA) with the competent court. This deadline is mandatory and failure to comply renders the action inadmissible.
The contestation action may pursue two distinct objectives:
- Positive action: the creditor whose claim was rejected or undervalued seeks its admission or an increase in the admitted amount;
- Negative action: a creditor seeks the exclusion or reduction of a competitor's admitted claim (for example, a suspicious intercompany claim or an inflated debt).
Our lawyers analyse the schedule of claims, identify contestable claims and bring the appropriate actions to protect our creditor clients' interests.
Frequently Asked Questions about Filing Claims in Bankruptcy
How do I find out if a company is bankrupt and how do I file a claim?
Bankruptcies in Switzerland are published in the Swiss Official Gazette of Commerce (SOGC, shab.ch) and in cantonal official gazettes. The call for creditors is announced there with the filing deadline and the contact details of the bankruptcy administration. To file a claim, the creditor must submit a proof of claim to the bankruptcy administration before the deadline expires, stating the amount, the basis of the claim, any securities, and attaching supporting documents (contracts, invoices, judgments, etc.).
What happens if a claim is filed late?
Late filing is possible (art. 251 DEBA), but the late creditor is only admitted to the schedule of claims for what remains available after satisfying creditors who filed on time. In practice, this often means the late creditor receives nothing or a minimal share. Additionally, the extra costs incurred by examining the late filing are charged to the late creditor. It is therefore crucial to comply with the deadline published in the SOGC.
How can I challenge the admission of another creditor's claim?
Any creditor may contest the admission of another creditor's claim in the schedule of claims by filing a contestation action (art. 250 para. 2 DEBA) with the competent court within 20 days of the schedule being made available for inspection. The claimant must prove that the contested claim does not exist, is lower than the admitted amount or ranks lower. This action is sometimes used to contest intercompany claims or debts owed to shareholders.
Are secured creditors treated differently in bankruptcy?
Yes. Creditors holding security (mortgage, pledge) are satisfied outside the ranking classes, directly from the proceeds of realisation of the encumbered asset (art. 219 para. 1 DEBA). If the proceeds fully cover their claim, they do not participate in the distribution among unsecured creditors. If the proceeds are insufficient, the balance is ranked in the third class alongside ordinary creditors. Secured creditors must nonetheless file their claim in the bankruptcy to be taken into account.
Can a claim be set off in bankruptcy?
Yes, within certain limits. Set-off (art. 213 DEBA) is permitted in bankruptcy when both claims existed before the opening of bankruptcy and the bankruptcy estate's claim is certain and due. The set-off must be declared to the bankruptcy administration. However, it is excluded when the third party's claim was acquired for value after the opening of bankruptcy or during the suspect period, with the intention of gaining an advantage through set-off.