Refusal to allocate a claim in the fifth class for loss suffered during the realization of a mortgaged property in the context of the bankruptcy of the mortgagee

Facts

The case concerns a decision by the Swiss Federal Court regarding a bankruptcy. Horta Generalunternehmung AG, which was bankrupt, had pledged mortgage deeds to Schweizerische Kreditanstalt and other banks to secure a loan to Horta Konzernleitung AG. When the mortgaged property was realized in the context of the bankruptcy, the banks suffered a loss. They requested the allocation of this loss in the fifth class in the bankruptcy of Horta Generalunternehmung AG, which the court refused.

The parties involved are Schweizerische Kreditanstalt, Schweizerische Bankverein, Schweizerische Bankgesellschaft, Schweizerische Volksbank, and Allgemeine Aargauische Ersparniskasse, as well as Horta Generalunternehmung AG and Horta Konzernleitung AG. The key dates are November 27, 1980, for the judgment of the court of first instance and May 22, 1981, for the judgment of the court of appeal.

Considerations

The Federal Court examined the arguments of the parties and considered that the mortgagee creditor cannot request the allocation of the claim corresponding to its damage in the same bankruptcy as that of the mortgagee. The court estimated that the mortgagee creditor can only assert such a claim against the debtor of the loan, in this case, Horta Konzernleitung AG.

The court also considered that the position of the mortgagee creditor in the bankruptcy of the mortgagee is governed by articles 76 KOV and 126 VZG. According to these provisions, the mortgagee creditor cannot request the allocation of its claim in the fifth class in the bankruptcy of the mortgagee, but must instead assert its claim against the debtor of the loan.

The court further examined the arguments of the parties…