Claim for declaration of non-existence of a lien under Art. 85a DEBA is inadmissible

Facts

The case concerns a property owned by L.F., which was encumbered by two mortgage deeds. A.B., the widow of the deceased creditor B.B., initiated enforcement proceedings to realize these mortgage deeds. L.F. then filed a claim with the District Court of Hinwil to have the non-existence of the liens declared and the enforcement proceedings discontinued. The District Court and the High Court of the Canton of Zurich dismissed the claim. L.F. then appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court dismisses the appeal. It states that the claim under Art. 85a DEBA can only concern the debt itself, not the existence of the lien. The wording of the provision refers to the "person against whom enforcement is directed", which only means the debtor, not the third-party pledgor.

The legislative history of Art. 85a DEBA shows that the legislator intended to limit the claim to the existence of the debt. A proposal to extend the claim to the lien was not included in the deliberations.

The…