Facts
In this case, there was a dispute between a bank (creditor) and a third-party pledgor (Y.) regarding the enforcement of claims secured by a mortgage. The debtor (A. AG) had transferred three bearer mortgage bonds to the bank as collateral. Later, the debtor sold the properties to Y., who thus became the third-party pledgor. After the debtor's bankruptcy was declared, the bank initiated debt enforcement proceedings for the realization of the mortgage, to which Y. filed an objection.
The district court granted provisional enforcement for a portion of the claim, while the cantonal court completely denied the enforcement, as it considered a recognition of the debt by the third-party pledgor to be necessary. The bank appealed this decision to the Federal Supreme Court.
Considerations
The Federal Supreme Court decided that in the case of a third-party pledge relationship, the paper mortgage bond constitutes a public document that serves as an enforcement title for both the mortgage right and the mortgage claim. Additional recognition of the debt by the third-party pledgor is not required, as the third-party pledgor is not personally obligated to pay.
For the mortgage claim, it is sufficient if the debtor…