Facts
The Solothurn Bank SoBa had initiated debt enforcement proceedings for the realization of a mortgage against M. H. As a result, the debt collection office ordered the seizure of the rents for 42 parking spaces in accordance with Art. 91 of the Debt Enforcement and Bankruptcy Act (VZG) and set the monthly rent at CHF 2,100. The third-party owner of the mortgage, Sch. AG, opposed this rent freeze. The cantonal supervisory authority lifted the rent freeze, as the bank had not requested the rent freeze together with the debt enforcement proceedings and had not paid the advance on costs. The bank appealed this decision to the Federal Supreme Court.
Considerations
The Federal Supreme Court concluded that the rent freeze can also be requested at a later time than the debt enforcement proceedings, as long as it was not expressly waived. The mortgage creditor does not necessarily have to pay the advance on costs for the rent freeze together with the debt enforcement proceedings, as the Fee Ordinance no longer contains any information on the amount of the advance on costs. However, the subsequent request for the imposition of the rent freeze and the subsequent order by the…