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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Procedure
- II. Effects of the opposition on the debt enforcement proceedings
- Bibliography
- Materials
I. Procedure
1 Art. 265a LP regulates how to deal with objections on the grounds of failure to return to better fortune. The debtor must first raise the objection (infra A). The procedure is then divided into two judicial phases, preceded by a preliminary non-judicial phase. During the preliminary phase, the office verifies the formal aspects of the objection (infra B). During the first judicial phase, the judge issues a decision on its admissibility (infra C). Following this decision, the creditor and the debtor may, in a second phase, bring an action for a declaration of return or non-return to better fortune (infra D).
A. Opposition on the grounds of non-return to better fortune (Art. 265a para. 1 LP)
1. Grounds for opposition
2 The office does not automatically examine whether the formerly bankrupt debtor has regained financial standing. The debtor must personally invoke the exception by filing an opposition to the order to pay or to the request for preferential treatment (Art. 111 para. 4 LP). The objection can only be invoked by a natural person against whom one or more certificates of insolvency have been issued following the closure of bankruptcy proceedings (OK-Constantin, Art. 265 LP N. 1). The legal personality of a legal entity does not survive these proceedings (Art. 159a para. 1 let. b ORC; OK-Constantin, Art. 267 LP N. 5) . The objection has effect vis-à-vis the creditor and any successors (heirs, assignees, etc.). It is also enforceable against claims whose holders did not participate in the bankruptcy or whose claims were not collated (N. 8; Art. 267 LP; OK-Constantin, art. 267 LP N. 10), but not to claims arising after the opening of bankruptcy proceedings (N. 12). The right to file an objection on the grounds of non-return to better fortune does not pass to the heirs of the former bankrupt debtor, who may renounce the succession (art. 566 ff. CC) .
3 Art. 265a LP is a lex specialis in relation to Art. 74 and Art. 75 para. 1, 1st sentence LP, according to which it is not necessary to give reasons for the objection. Debtors who contest their return to financial prosperity must therefore expressly state this in their opposition, failing which they forfeit the right to assert this defense (Art. 75 para. 2 LP). This forfeiture excludes the procedures under Art. 85, 85a, and 86 LP. The objection may relate to the non-existence of new fortune, the claim itself, or both. It will be considered a simple challenge to the claim if it is not substantiated (“ordinary objection” to be lifted in accordance with the procedures set out in Art. 79 ff. LP; N 39 ff.). Opposition on the grounds of non-return to better fortune does not limit the debtor's ability to contest the extent or existence of the claim. The office will examine whether the debtor has filed an objection on the grounds of no return to better fortune before forwarding it to the judge, if necessary (N. 12). At this stage, supporting documents are superfluous (cf. N. 20 and N. 30).
4 In practice, the requirement to state reasons is interpreted flexibly and does not require the debtor to file an objection using the precise words “no new assets.” For example, objections stating the following reasons have been deemed sufficient: “situation unchanged,” “I have not regained my financial standing” (“bin zu keinem neuen Vermögen gekommen”), " I cannot pay anything“ (”ich kann nichts zahlen“) or ”objection no better/new fortune“ (”Rechtsvorschlag kein neues Vermögen“). However, the mere statement ”I am raising an objection“ (”Ich erhebe Rechtsvorschlag") is not sufficient.
5 The objection and its scope are interpreted in accordance with the principle of good faith. According to case law, unless expressly stated otherwise, the debtor's objection on the grounds of no return to better fortune also includes an objection to the claim itself (N. 39 ff.). For example, the absence of punctuation between the terms “objection no new fortune” (“Rechtsvorschlag kein neues Vermögen” ; N. 4) does not allow the two parts of the statement to be clearly distinguished and to say that the objection is based solely on the lack of new assets. However, the Federal Court has ruled that the objection relates only to the return to better fortune if the debtor makes an “objection due to lack of new assets” (“Rechtsvorschlag da kein neues Vermögen vorhanden”).
6 In the event of withdrawal of the objection on the grounds of no return to better fortune and in the absence of express clarification, cantonal case law and doctrine consider, out of consideration for the debtor, that there is no waiver of the objection to the claim itself. The principle of interpretation “in dubio pro debitore,” which favors one of the parties and prevailed in the past, is excluded for the rest (N. 5 for interpretation according to the principle of trust).
7 Under penalty of forfeiture (N. 3), the objection for failure to return to better fortune must be lodged within the objection period, i.e., within ten days of notification of the order to pay (Art. 74 para. 1 LP and Art. 75 para. 2 LP in conjunction with Art. 265 para. 1 LP; cf. Art. 265a LP N. 10; cf. Art. 35 and 33 para. 2 LP for the possibility of granting a longer period or extending the period). A debtor who has filed an opposition without stating reasons may supplement it within this period, but not at a later stage of the proceedings (Art. 75 para. 2 LP). An extension of the time limit is possible under the conditions of Art. 33 para. 4 LP. Unless there are excusable grounds, the restoration of the time limit in favor of a debtor who did not realize that the debt enforcement was based on an act of insolvency after bankruptcy is excluded (Art. 265 LP N 15; Art. 265a LP N 8). In case of doubt, the former bankrupt debtor should give reasons for his opposition (N. 3 s.) and invoke the exception of non-return to better fortune. Except for revocation proceedings (Art. 288 LP), new creditors have no claim against the former bankrupt debtor if he fails to assert the exception against a creditor with a claim from a previous bankruptcy.
2. Claim established by an act of insolvency after bankruptcy
8 Opposition on the grounds of non-return to better fortune concerns claims deducted in proceedings prior to bankruptcy that have been established by an act of insolvency after bankruptcy or that fall under Art. 267 LP. Where an act of insolvency after bankruptcy exists, the creditor is not required to mention it in the enforcement request, as this certificate does not constitute a novation (Art. 265 LP N 15) and does not constitute a debt instrument per se (see Art. 67 LP for the content of the enforcement request).
9 A creditor who has a certificate of insolvency after bankruptcy may request a seizure against the former bankrupt debtor (Art. 271 para. 1 no. 5 LP; Art. 265 LP N 9). Once the seizure has been ordered, the former bankrupt debtor may raise the objection of non-return to better fortune by filing an objection with the judge within ten days of becoming aware of the seizure against him (Art. 278 LP). The procedures set out in Art. 265a para. 1 to 3 LP will be initiated at the stage of enforcement to validate the seizure in the case of seizure without prior enforcement (Art. 279 LP) or at the stage of proceedings prior to the request for seizure in the event of prior proceedings. The office is not competent to examine the merits of the exception; it is required to execute the seizure order (Art. 274 ff. LP). The judge ruling on the admissibility of the objection for failure to return to better fortune within the meaning of Art. 265a para. 1 LP is not bound by the assessment of the attachment judge on the existence or non-existence of better fortune (see for the procedure: N. 17 ff.).
10 After leaving open the question of the context in which the objection for failure to return to better fortune arises, the Federal Court ruled that the limitation imposed by the requirement of a return to better fortune affects the legal relationship giving rise to the claim included in a previous bankruptcy. The exception can thus be raised and have substantive legal effects outside of enforcement proceedings. In other words, the former bankrupt debtor may invoke it as soon as such a claim is invoked to his detriment, whether in the context of enforcement proceedings (including against a possible assignee; N. 1) or outside of enforcement. The latter case arises, for example, when the debtor defends himself against a creditor who holds a certificate of insolvency after bankruptcy and who invokes his claim as compensation (Art. 120 CO) in order to extinguish a new claim by the former bankrupt against him (i.e., a claim arising after the previously liquidated bankruptcy; N 8). According to Jeandin, the exception of non-return to better fortune should even be invoked in the event of bankruptcy without prior prosecution at the request of the creditor who would assert a claim resulting from a certificate of insolvency after bankruptcy (Art. 190 LP).
11 An objection on the grounds of non-return to better fortune is not admissible when the claim has been established by an act of insolvency after seizure, unless it is made for a claim established by an act of insolvency after bankruptcy (Art. 265 LP N 19) or which relates to a claim that arose before the opening of bankruptcy proceedings and which did not participate in the liquidation (Art. 267 LP; N. 8). Nor is it admissible against an act of insolvency resulting from foreign bankruptcy (Art. 265 LP N 24). All of the Swiss assets of the former bankrupt debtor must have been subject to general enforcement in order for him to be able to invoke Art. 265 et seq. LP relating to non-return to better fortune. This is the case when a foreign bankruptcy decision is recognized in Switzerland in accordance with Art. 166 et seq. LDIP.
B. Examination of the opposition by the office (Art. 265a para. 1 LP)
12 The examination of the opposition by the office is purely formal. It concerns compliance with the ten-day time limit (N 7) and the requirement to state reasons (N. 3), but not on the existence and closure of a previous bankruptcy, the time when the claim arose, or the validity of the exception for no return to better fortune (these latter elements being examined by the judge; see N. 17 ff. and N. 26 ff.). Following the preliminary examination, the objection is submitted ex officio to the judge of the forum of the enforcement proceedings without any introductory act on the part of the debtor. In order to avoid unnecessarily overburdening the courts, it is accepted practice in Zurich for the office to inform the creditor of the objection on the grounds of non-return to better fortune filed by the debtor, giving the creditor ten days to withdraw the debt collection proceedings, failing which the objection will be submitted to the competent judge. This practice serves to streamline the procedure, but adds a step—namely, setting a deadline for the creditor to “confirm” the debt collection—which is not provided for by law.
13 The interpretation of Art. 265a para. 1 LP in case law is formalistic. The case is therefore referred to the judge even if the objection is manifestly inadmissible. This is the case if the debtor has never been declared bankrupt, if the bankruptcy has been suspended due to lack of assets (Art. 230 LP; Art. 265 LP N 24), if the bankruptcy has been revoked (Art. 195 LP) or if the claim pursued arose after the opening of bankruptcy proceedings.
14 A complaint may be lodged within the meaning of Art. 17 LP if the office refuses or delays forwarding the objection on the grounds of non-return to better fortune to the judge, even if this is for reasons related to the admissibility of the objection or the exception of non-return to better fortune itself. The absence of a decision by the office on the formal validity of the objection without transmission to the judge constitutes a denial of justice that may be the subject of a complaint (Article 17(3) LP).
15 A decision by the office that informs the debtor of the remedies available to them, incorrectly mentioning the possibility of invoking non-return to better fortune before the judge (instead of automatic transmission; N. 12), is voidable but not null and void. The debtor is required to respond in such a case, failing which the possibility of bringing the matter before the court within the meaning of Art. 265a para. 1 LP is forfeited.
16 The supervisory authority is competent to examine, upon complaint, whether the objection is formally valid (N. 3, N. 7 and N. 12).
C. Judicial decision on the admissibility of the objection (Art. 265a para. 1–3 LP)
1. Procedural aspects
17 The court examines the admissibility of the objection after hearing the parties orally or in writing (Art. 265a para. 1 LP; Art. 252 et seq. CPC) . He or she shall rule definitively on all aspects relating to the exception of non-return to better fortune, including on questions of formal admissibility already examined by the office (N. 12 and N. 23). The summary procedure shall apply (Art. 251(d) CPC). There shall be no prior conciliation (Art. 198(a) CPC).
18 The jurisdiction based on the location of the court of the place of enforcement is mandatory and expressly reserved by Art. 46 CPC in conjunction with Art. 265a para. 1 LP. The place of jurisdiction for debt enforcement is determined in accordance with Art. 46 ff. LP and may change during the proceedings if the creditor becomes aware of the relocation of the formerly bankrupt debtor (Art. 53 a contrario LP). Cantonal law determines substantive jurisdiction (Art. 4 CPC). Given the identical nature of the proceedings, the creditor may obtain the lifting of the opposition against the claim itself in the same proceedings (N. 39 ff.) provided that the substantive jurisdiction of the judge ruling on the opposition is the same as that of the lifting of the opposition. This constitutes a joinder of actions within the meaning of Art. 90 CPC. A joinder of cases is also possible if the lifting procedure is already pending (Art. 125(c) CPC; N. 38 ff.).
19 The advance on costs is paid by the formerly bankrupt debtor, subject to legal aid (Art. 117 et seq. CPC). The debtor assumes the role of plaintiff within the meaning of Art. 98 CPC, since his opposition on the grounds of non-return to better fortune automatically results in the matter being brought before the judge (N. 12). The advance payment of costs may cover the totality of the presumed legal costs (Art. 98 para. 2 let. c CPC). Art. 48 OELP applies to the determination of legal costs. Decisions relating to advances on costs may be appealed within ten days (Art. 103 CPC in conjunction with Art. 319(b)(1) and Art. 321(2) CPC). The Federal Court has ruled that it is not arbitrary to apportion the costs proportionally between the debtor and the creditor on the basis of objective grounds (e.g., to take into account the creditor's difficulty in assessing the debtor's financial situation when initiating enforcement proceedings and the debtor's refusal to cooperate, or to draw conclusions from the creditor's failure to reduce their claims after reviewing the documents produced by the debtor; see N. 22 for challenges to decisions on costs). There is a specific feature in the canton of Vaud. According to section 2 of Circular No. 34 of the Vaud Cantonal Court of April 22, 2014, the judge systematically refrains from requiring an advance on costs in this canton. This circular appears to be contrary to Art. 98 CPC, as the question of whether and to what extent an advance on costs may be required is to be examined by the judge in each individual case and is at his or her discretion.
20 Proof is provided by means of documents (Art. 254 para. 1 CPC). Other means of proof are admissible under the conditions of Art. 254 para. 2 CPC. The former bankrupt debtor bears the burden of proof. He must openly disclose his income and financial situation and make it plausible that he has not returned to better fortune (Art. 265a para. 2 LP; Art. 265 LP N. 28 for the decisive moment). The former bankrupt debtor must provide concrete evidence that his fortune has not improved, for example by producing bank statements, salary certificates, contracts (lease agreements, employment contracts, etc.), a judgment ordering him to pay alimony, budgets, tax returns and assessments, etc. They must also produce all documents enabling their fortune to be distinguished from assets over which they have economic control and which belong to a third party (Art. 265a para. 3 LP; N. 32 ff.; Art. 265 LP N. 31 ff.). The question of whether the inquisitorial principle applies is controversial (Art. 255(a) CPC). In my opinion, it does. Although the initiative for the proceedings comes from the creditor, the creditor has the role of the defendant (or respondent). As far as possible, the creditor shall produce all documents proving, from a probability perspective, the existence of new assets belonging to the formerly bankrupt debtor and/or assets over which the latter has economic control.
21 The purpose of the opposition proceedings is to allocate the roles of the parties in any subsequent declaratory action (Art. 265a para. 4 LP; N 26 ff.), to enable the creditor to assess the chances of success of such an action after examining the documents produced by the debtor (cf. N. 3) and to serve the principle of procedural economy by avoiding ordinary proceedings if the parties waive them.
2. Decision and absence of legal remedy
22 The judge declares the opposition admissible if he considers that the debtor has not regained his fortune (Art. 265a para. 2 LP). On the other hand, he declares the opposition inadmissible if he finds that the debtor's financial situation has improved and determines, where applicable, the total amount by which the debtor's financial situation has improved (Art. 265a para. 2, 1st sentence LP; Art. 265 LP N. 25 ff.) . In the latter case, the seizure will be carried out by the office in accordance with Art. 92 ff. LP. The part of the decision concerning costs and expenses and their allocation is subject to appeal within ten days (Art. 110, 319 let. b ch. 1 and 321 para. 2 CPC). In most cases, this appeal is followed by a subsidiary constitutional appeal to the Federal Supreme Court within thirty days (Art. 113 ff. LTF), as the costs of summary proceedings do not generally reach the value in dispute of CHF 30,000, which opens the way for an appeal in civil matters (Art. 74 para. 1 let. b LTF; N. 19) .
23 Apart from the question of costs and expenses, the substantive decision of the court of first instance on the existence of a return to better fortune is not subject to any appeal at the cantonal level (Art. 265a para. 1, 2nd sentence LP). Art. 265a para. 1 LP is a special provision that derogates from the principle of two instances and the requirement for a higher court under Art. 75 para. 2 LTF. The decision thus rendered is in principle not subject to appeal in civil matters before the Federal Supreme Court (see N. 24 for the exception developed in the presence of formal defects). In order to challenge it and, in particular, to challenge a misapplication of debt enforcement law, the unsuccessful party must bring an action for a declaratory judgment as provided for in Art. 265a para. 4 LP (N. 26 ff.). This action must be mentioned in the indication of legal remedies at the bottom of the decision rendered pursuant to Art. 265a para. 1 LP, which serves as a means of reviewing the decision on opposition.
24 However, the Federal Court has developed an exception in the event of a violation of procedural rules that cannot be invoked in an action based on Art. 265a para. 4 LP, such as a violation of the appellant's right to be heard (Art. 29 para. 2 Cst.; Art. 53 CPC). This formal defect, which can be invoked regardless of its impact on the outcome of the proceedings, opens the way to civil law appeals to the Federal Supreme Court (Art. 72 para. 2(a) and 75 para. 1 LTF) or a subsidiary constitutional appeal (Art. 113 LTF) if the amount in dispute – which corresponds to the amount of the debt enforcement proceedings – does not reach CHF 30,000 (Art. 74 para. 1(b) LTF). In the latter case, case law considers, by way of derogation from the requirement of two cantonal instances (Art. 75 para. 1 LTF; N. 23), that the appeal is admissible for violation of federal law (Art. 95 let. a LTF) or for violation of constitutional rights in the case of a subsidiary constitutional appeal (Art. 116 LTF) . To date, the Federal Supreme Court has left open the question of whether such an appeal is available for violations of other procedural guarantees, such as the right to an impartial and independent court (Art. 29 para. 1 Cst.; N. 28).
25 When the judge does not enter into the merits of the case and does not rule on the admissibility of the opposition on the grounds of non-return to better fortune (for example, if the debtor has failed to produce the personal bankruptcy decision [not accessible in a public register]; N. 13), cantonal doctrine and case law apply Art. 309(b) CPC and consider that an appeal in the strict sense lodged within ten days (Art. 319 ff. CPC) is available against the decision of inadmissibility of the objection rendered in summary proceedings. Even though the issue has not yet been decided by the Federal Court, this approach is convincing: only decisions on the merits that rule on substantive matters of debt enforcement law are not subject to cantonal appeal (N. 23). As the legal remedies available are unclear and cantonal practices may be contradictory, a prudent litigant would be well advised in such a case to lodge both an appeal (within ten days; Art. 321 para. 2 CPC) and an action for a declaratory judgment within the time limit specified in Art. 265a para. 4 LP (N. 26).
D. Declaratory action (Art. 265a para. 4 LP)
1. Procedural aspects
26 If unsuccessful at the end of the procedure prescribed by Art. 265a para. 1 LP, the debtor or creditor may bring an action on the merits to establish non-return or return to better fortune before the judge of the place of enforcement within twenty days of notification of the decision on the objection (N. 22 ff.). Since the entry into force of the revision of the CPC on January 1, 2025, Art. 145 para. 4 CPC provides that the provisions of the CPC on the suspension of time limits apply to all actions under the LP to be brought before a judge. In the event of an unmotivated decision, the dies a quo of the twenty-day period shall run from the date of notification of the operative part within the meaning of Art. 239 para. 1 CPC.
27 The action for a declaratory judgment is positive when it is brought by the creditor. It is negative when it is brought by the former bankrupt debtor. The action relates to a purely legal enforcement procedure and constitutes an incidental issue of enforcement law aimed at determining whether or not the creditor may continue the enforcement proceedings (N. 38 ff.). The subject matter of the dispute is limited by the plaintiff's conclusions. It may relate to the existence and determination of new assets and/or the consideration and seizure of assets over which the debtor has economic control (N. 32).
28 Jurisdiction based on location is mandatory (Art. 265a para. 4 LP cum Art. 46 CPC). Based on Art. 53 a contrario LP, Bohnet allows a change of venue during proceedings if the creditor is aware of the debtor's change of domicile (see also N. 18). Subject-matter jurisdiction is determined by cantonal law (Art. 4 CPC). The judge who declared the opposition for non-return to better fortune admissible must not be the same as the judge in the declaratory action brought by the debtor (prohibition of “personal union”). According to case law, such a combination of functions contravenes the guarantee of an impartial court (Art. 30 para. 1 Cst., Art. 6 § 1 ECHR; N. 24).
29 Depending on the value in dispute, the action is subject to ordinary procedure (Art. 219 ff. CPC) or simplified procedure (Art. 243 ff. CPC). The value in dispute corresponds to the amount covered by the requested finding, i.e., the amount of the claim deducted in the event of a positive declaratory action (N. 27) . Although this case is rather theoretical, summary proceedings may apply if the plaintiff, in possession of immediately available evidence, chooses the route of protection of clear cases (Art. 248(b) and 257 CPC cum Art. 254 CPC). Regardless of the applicable procedure, prior conciliation is excluded by Art. 198(e)(7) CPC. The parties may obtain legal aid if the conditions of Art. 117 et seq. CPC are met. In my opinion, it is in the debtor's interest to apply for legal aid, since failure to do so could already be interpreted as an indication of his return to better fortune.
30 The maxim of debate applies (Art. 55 para. 1 CPC and Art. 255 a contrario CPC) without restriction of the means of evidence (cf. N. 20). The degree of proof is that of strict proof (cf. N. 20). Regardless of his role in the proceedings, the creditor has the burden of proof of the existence of new wealth (Art. 8 CC). It is up to the former bankrupt debtor to allege the facts and provide evidence to determine his expenses, the amount necessary to lead a life in accordance with his condition (Art. 265 LP N 25) and the non-existence of new wealth. In any event, he must cooperate in the the administration of evidence. In the event of refusal, Art. 164 CPC applies and the judge may take into account at least the basic amount for calculating the minimum subsistence level, adding the corresponding supplement (Art. 265 LP N 29; cf. Art. 107 para. 1 let. f CPC for the possibility of apportioning costs equitably in this case).
31 The decision rendered at the end of the declaratory action within the meaning of Art. 265a para. 4 LP is a final decision according to Art. 236 CPC. It may be appealed if the value in dispute reaches CHF 10,000 (Art. 308 para. 2 CPC). The strict appeal procedure (Art. 319 ff. CPC) is available for a lower value in dispute. Art. 142 ff., 311 para. 1 and 321 para. 1 CPC are applicable, to the exclusion of Art. 56 ff. LP, for the calculation and suspension of time limits (see also N. 26). The decision of the higher cantonal authority on the declaratory action may be appealed in civil matters to the Federal Supreme Court (Art. 72 ff. LTF). A subsidiary constitutional appeal (Art. 113 ff. LTF) may be lodged if the minimum value in dispute of CHF 30,000 (Art. 74 para. 1 LTF) is not reached. In this case, the appellant's grievances are limited to the violation of constitutional rights (Art. 116 LTF). The time limits for appeals to the Federal Supreme Court are governed and calculated by the LTF.
2. Declaration of the attachability of assets belonging to a third party
32 If the judge declares the opposition for non-return to better fortune inadmissible, he or she may determine the extent of the new fortune of the formerly bankrupt debtor by declaring assets belonging to a third party attachable under the following three conditions.
33 First, the debtor must have economic disposal over these assets (Art. 265a para. 3, 2nd sentence LP).
34 Second, the third party's right must have been established by the debtor with the intention, recognizable by the third party, of preventing the return to better fortune (Art. 265a para. 3, 2nd sentence LP; Art. 265 LP N 31) . The concept of “right established in favor of the third party” is interpreted broadly. It presupposes the establishment of a mechanism that is objectively capable of legally reducing the assets of the formerly bankrupt debtor or preventing their increase. This refers both to an act committed by the debtor (e.g., formal transfer of ownership) and to an omission by the third party (e.g., making an asset available without transferring ownership to the debtor), provided that it is accompanied by a subjective element. This element includes the concept of “intention recognizable by the third party,” which corresponds to that of fraud in revocation actions (Art. 288 LP).
35 Thirdly, Art. 95 para. 3 LP requires the seizure as a last resort of property belonging to third parties. Such seizure implies that the debtor's assets alone will not be sufficient to fully satisfy the creditor (Art. 265 LP N 31). This condition is examined by the office at the time of seizure.
36 Like Art. 265 para. 2 LP, Art. 265a para. 3 LP concerns assets belonging to third parties but over which the debtor has economic control. However, only the application of Art. 265a para. 3 LP has an impact on the legal situation of the third party. Art. 265 para. 2, 3rd sentence LP makes it possible to determine whether or not the former bankrupt debtor has regained financial standing without affecting the legal situation. The distinction between Art. 265 para. 2 and Art. 265a para. 3 LP is therefore as follows: the mere consideration of assets belonging to third parties in order to determine the debtor's new fortune in accordance with Art. 265 para. 2 LP does not yet affect the legal situation of the third party. The situation is different in the case of a declaration of seizure within the meaning of Art. 265a para. 3, 2nd sentence LP, which always implies seizure of these assets.
37 A third party affected by a declaration of attachability of assets belonging to them is not a party to the proceedings under Art. 265a LP and does not have standing to challenge the decision on the admissibility of the opposition (N. 22 ff.) or the declaratory actions under Art. 265a para. 4 LP (N. 26 ff.). They must assert their rights to the seized assets by means of a claim within the meaning of Articles 106 to 109 LP, which will focus on the failure to meet the conditions of Article 265a(3) LP. According to legal doctrine, the third party may play a role in the declaratory action, in particular through a principal or ancillary intervention (Article 73 et seq. CPC). They may also be called as a witness in the action, or even as an immediately available witness if they accompany the party relying on their testimony at the hearing appointed to decide on the admissibility of the opposition (despite the summary nature of this procedure; N. 17).
II. Effects of the opposition on the debt enforcement proceedings
A. Lifting of the opposition
38 The opposition for failure to return to better fortune and the decision on the admissibility of the opposition only have effect in the ongoing debt enforcement proceedings (N. 27). The existence of new assets will be re-examined in subsequent debt enforcement proceedings between the same parties and relating to the same claim, taking into account the fact that other creditors may have been paid off in the meantime or may have obtained a share of the new assets as a result of previous debt enforcement proceedings.
39 The effects of the objection raised by the formerly bankrupt debtor on the debt collection proceedings depend on its scope. Proceedings to lift the objection are superfluous if the claim as such is recognized and the objection is expressly limited to the non-return to better fortune (N. 5). If it is also directed against the claim, the judge under Art. 265a para. 1 to 3 LP will not examine the opposition to the claim itself. This must be lifted by the court before the debt collection proceedings can continue. This can be done by means of a definitive lifting procedure within the meaning of Art. 80 s. LP, by a provisional release procedure within the meaning of 82 s. LP or by an action for recognition of debt under Art. 79 LP. The law does not provide for any coordination rules. According to Jeandin, the judge called upon to rule on the admissibility of the objection should call upon the debtor to clarify the scope of his objection in case of doubt. An unclear objection that has not been clarified by the debtor at the request of the office should, in my opinion, be treated as an unmotivated objection, which only concerns the claim (N 3), so that a request for clarification by the judge does not seem necessary.
40 An objection on the grounds of failure to return to better fortune does not in itself suspend the course of the proceedings (cf. Art. 78 para. 1 LP). However, the proceedings are suspended if the judge declares the objection on the grounds of failure to return to better fortune to be entirely admissible. In this case, the creditor may not request the lifting of the objection against the claim before the action for a declaration of return to better fortune becomes final (Art. 265a para. 4 LP), and the judge will not consider a request for lifting.
41 However, the creditor may request the lifting of the opposition to the claim as soon as the judge has declared the opposition for non-return to better fortune inadmissible (in whole or in part). The decision on the opposition, even if made on the basis of prima facie evidence (N. 20), is sufficient to protect the former bankrupt debtor against his former creditors, who in such a case do not have to wait for the outcome of the negative action for a declaration brought by the debtor (Art. 265a para. 4 LP). A creditor whose claim is not or no longer contested may also request a provisional seizure or inventory (Art. 83 para. 1 and 162 by analogy LP) before the outcome of the above-mentioned action, as soon as the decision on the admissibility of the opposition is in their favor.
42 If the debtor is unsuccessful in the provisional release proceedings before a decision is made on the action under Art. 265a para. 4 LP, the debtor cannot wait for the outcome of the declaratory action. The debtor must bring an action for debt relief within 20 days of the release (Art. 83 para. 2 LP). To avoid duplicating proceedings and the risk of contradictory decisions, it would be advisable to immediately request the suspension of the proceedings under Art. 83 para. 2 LP until a decision is made on the action under Art. 265a para. 4 LP (Art. 126 CPC).
43 The entry into force of a decision establishing the non-existence of new assets of the formerly bankrupt debtor definitively paralyzes the proceedings. It renders ex lege moot any release proceedings, whether pending or decided, as well as any provisional measures ordered pursuant to Art. 83 para. 1 LP (N. 41). In the absence of proceedings to be set aside, any pending action for debt relief would, in my opinion, become irrelevant in such a situation.
B. Continuation of proceedings
44 If the debtor has invoked the exception of non-return to better fortune, the proceedings may not be continued within the meaning of Art. 88 LP only after the decision on the exception has become final. Except in cases where the former bankrupt debtor does not file an objection on the grounds of non-return to better fortune, the continuation of the proceedings is therefore subject to the following three conditions.
45 First, the existence of a new fortune of the former bankrupt debtor must have been definitively established. This is the case if the debtor does not file a declaratory action against a decision of inadmissibility of the objection on the grounds of non-return to better fortune or, in the event that an action within the meaning of Art. 265a para. 4 LP has been brought, if the decision establishing the return to better fortune has become final. If the judge declares the opposition inadmissible, the amount by which the debtor's financial situation has improved, as determined by the judge (Art. 265 para. 2 LP cum Art. 265a para. 3 LP), which is in principle less than the amount of the claim pursued, will correspond to the amount up to which the proceedings may continue. It will also depend on the outcome of the release proceedings aimed at setting aside the opposition if it also affects the claim.
46 Secondly, if the opposition was also directed against the claim, the opposition must have been set aside by the procedures under Art. 79 to 84 LP (N. 38 ff.). Such a procedure is unnecessary when the opposition concerns only the failure to return to better fortune (N. 5); the continuation of the proceedings may be requested as soon as the exception has been definitively decided in accordance with Art. 265a LP.
47 Thirdly, the time limit of one year from the notification of the payment order must be observed (Article 88(2) LP). This time limit does not run until the exception for non-return to better fortune has been definitively dismissed.
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Materials
Message concernant la revision de la loi fédérale sur la poursuite pour dettes et la faillite du 8 mai 1991, FF 1991 III 1, disponible sur https://www.fedlex.admin.ch/eli/fga/1991/3_1_1_1/fr, consulté le 6.3.2025.
Message relatif à la modification du code de procédure civile suisse (Amélioration de la praticabilité et de l’application du droit) du 26 février 2020, FF 2020 2607, disponible sur https://www.fedlex.admin.ch/eli/fga/2020/653/fr, consulté le 6.3.2025.