SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
Classes of claims in the bankruptcy In both ordinary and summary liquidation procedures, secured claims are satisfied directly out of the pro - ceeds from the realisation of the collateral. Should the proceeds not be sufficient to satisfy the claim of a secured creditor, such creditor shall rank as an unse - cured and non-privileged creditor for the outstanding amount of their claim. Unsecured claims are ranked within three classes of claims (Article 219, DEBA), which are essentially com - posed as follows: • The first class consists of claims of employees: (a) derived from the employment relationship that arose during the six months prior to the opening of bankruptcy proceedings and that do not exceed the maximum insurable annual salary as defined by the Federal Ordinance on Accident Insurance (which is currently CHF148,200); (b) in relation to the restitution of deposited secu - rity; and (c) derived from social compensation plans that arose during the six months prior to the open - ing of the bankruptcy proceedings – the first class also includes claims of the assured derived from the Federal Ordinance on Ac - cident Insurance and from facultative pension schemes, as well as claims of pension funds against employers. • The second class includes claims of various contri - butions to social insurances. • All other claims are comprised in the third class. Claims in a lower ranking class will only receive divi - dend payments once all claims in a higher ranking class have been satisfied in full. Claims within a class are treated on a pari passu basis. The costs incurred during the bankruptcy proceedings are debts of the estate and have to be paid with priority, ie, before any other creditor is paid. Upon the expiry of the dead - line of the call to creditors, the bankruptcy adminis - tration (the bankruptcy office in the case of a sum - mary liquidation procedure) reviews the claims filed and makes decisions in their respect after consulting with the debtor’s representative (Articles 244 and 245, DEBA). The schedule of claims – ie, the decisions of
the administration of the bankruptcy on the claims in the bankruptcy – is filed with the bankruptcy office and a notice is published in the official gazette (Arti - cles 247–249, DEBA). Creditors may challenge the decision regarding their own claim (existence, privilege, class and quantum) or the claims of other creditors by filing within 20 days an action of challenge of the schedule of claims before the court of first instance (Article 250, DEBA). The proceedings are conducted in a summary procedure. Creditors who file late claims may participate in the bankruptcy proceedings but are excluded from the interim distributions of assets that precede the filing of their claims (Article 251, DEBA). The bankruptcy administration liquidates the debtors’ assets and brings claims against third parties that may be liable to the debtor (Articles 256ff, DEBA). The bankruptcy administration distributes the pro - ceeds (dividends) of the liquidation of the debtors’ assets in accordance with the ranking of the class and in proportion to the claim of each creditor (Arti - cles 261ff, DEBA). In an ordinary liquidation proce - dure, interim distribution may take place, while in a summary liquidation procedure, the distribution takes place at the end of the bankruptcy procedure. The dividends corresponding to claims of creditors against the bankruptcy that have not been finally adjudicated are set aside until they are, and, as the case may be, are distributed to such creditors or among the other creditors. Assignment of claims to the creditors If the bankruptcy administration renounces to bring an action in regard of a contentious claim, and no credi - tor objects, each creditor may request to be assigned the rights of action of the bankruptcy estate (Article 260, DEBA). All creditors who have been assigned a claim must act jointly and severally, at their own costs and risks, on behalf of the bankruptcy estate. After deduction of the costs they incurred, assigned credi - tors receive a share of the recoveries they obtained, in accordance with the ranking of the class and in proportion to their claim. The excess, if any, is remit - ted to the bankruptcy administration and distributed to the other creditors.
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