Facts
In this case, the Zurich Cantonal Bank challenged a collocation plan. The bank had acquired four bearer mortgage deeds from M. Karpf totaling 1.6 million Swiss francs and had transferred them to itself as security.
In the security agreement, M. Karpf had also acknowledged three forfeited annual interest payments and the current interest at 7% on the mortgage deed capital.
The bankruptcy administration included the mortgage deed capital in the schedule of liabilities but only considered the actually outstanding interest from the mortgage loans, not the additional interest acknowledged in the security agreement. The Zurich Cantonal Bank then filed a collocation action against the bankruptcy estate.
Considerations
The Federal Supreme Court dismissed the appeal of the bankruptcy estate. It stated that it is permissible to transfer mortgage deeds as security and to agree that they shall secure any claims up to the amount of the mortgage deed capital and the current and three forfeited annual interest. Provided that a debt of the corresponding amount exists, the mortgage deeds serve to secure this entire amount, even if the forfeited interest has been paid from this debt.
The Federal Supreme Court found that the mortgage deed interest acknowledged in the security agreement does not represent genuine interest claims, as they are not based on a loan of capital. Nevertheless, these interest payments can be claimed as collateral under Art. 818 para. 1 no. 3 of the Swiss Civil Code, as the…