Request for final release in a real estate pledge realization procedure based on a judgment ordering the definitive registration of a legal hypothec of artisans and entrepreneurs

Facts

The decision concerns a request for final release in a real estate pledge realization procedure. The facts are as follows:

• The Court of First Instance of the canton of Geneva ordered, by judgment of 8 June 2009, the definitive registration of the legal hypothec of artisans and entrepreneurs on parcel no. 7023 of the commune of X., property of B., up to 61'882 fr. 51 with interest at 5% per annum from 5 July 2007.
• On 3 June 2010, A. SA initiated a real estate pledge realization procedure aiming for the payment of the sum of 44'000 fr. (61'882 fr. 51 minus 17'882 fr. 51), with interest at 5% per annum from 5 July 2007.
• The defendant filed a total opposition to the payment order.
• The Court of First Instance definitively lifted the opposition to the payment order, but the Court of Justice annulled this judgment and rejected the request for final release.

Considerations

The Federal Court examined whether the pursuing creditor had a title of release for the pledge amount and the secured claim. The judgment ordering the definitive registration of a legal hypothec of artisans and entrepreneurs does not constitute a title of final release for the pledge, as it does not provide proof that the pledge was actually constituted.

The Federal Court also examined whether the judgment ordering the definitive registration of the legal hypothec constituted a title of final release for the secured claim. The judgment does not constitute a title of final release for the claim, as it does not aim to determine the claim as such, but…