Facts
In an enforcement proceeding for the realization of a mortgage, an entry was made in the register of encumbrances in favor of Bank [A.] regarding the mortgaged properties. [Z. AG], which holds a maximum mortgage in second rank on the mortgaged properties, initiated a debt restructuring proceeding and filed a complaint with the District Court of Horgen, requesting that the mortgage enforcement of Bank [A.] be declared null and void.
The District Court of Horgen dismissed the complaint, and the High Court of the Canton of Zurich confirmed this decision. Thereupon, [Z. AG] appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court holds that it is not the task of the debt collection office or the supervisory authority to decide on the existence of the pledge right claimed by a debt collection creditor. This question must be clarified by the judge in the debt enforcement or debt restructuring proceedings.
Furthermore, the Federal Supreme Court confirms its case law, according to which an enforcement proceeding for the realization of a pledge initiated before the opening of bankruptcy can be continued after the dismissal and closure of the bankruptcy due to lack of assets. The duration of the bankruptcy proceedings is to be added to the maximum deadlines of Art. 154 DEBA.
The Federal Supreme Court rejects the arguments of the appellant Z. AG. It sees no reason why a pursuing pledgee creditor, who could not submit the realization request before the opening of the bankruptcy, should not generally benefit…