Realization of a share of a hereditary community

Facts

Company [Z. SA] has a claim of 104,926 CHF 15 against A. In March 2007, the company requested and obtained the attachment, up to the aforementioned amount, of A.'s share in the estate of the late X. In the enforcement proceedings for the validation of the attachment, the debt collection office of [N.] seized A.'s share of the estate. On July 29, 2007, the creditor requested the realization of the seized asset.

The conciliation negotiations according to Art. 9 para. 3 of the Ordinance of the Federal Tribunal of January 17, 1923 concerning the seizure and realization of shares of a community (OPC) having failed, as well as those conducted in parallel by the heirs with a view to an amicable liquidation of the estate, the office seized the cantonal supervisory authority in accordance with Art. 132 para. 1 DEBA and Art. 10 para. 1 OPC.

Finding the failure of the amicable agreement, the district judge of [N.], acting as the supervisory authority, invited the parties to submit their proposals for further realization measures. A. requested a six-month extension for the heirs to finalize the distribution agreement under discussion. For its part, the creditor opposed this proposal and requested that the seized share of the estate be auctioned.

Ruling on December 13, 2007, the supervisory authority ordered the dissolution and liquidation of the estate of the late X., the costs of this operation to be advanced by [Z. SA], according to the instructions of the debt collection and bankruptcy office. The dispositif also provided that, failing advances, A.'s share should be realized at a public auction by the office.

By judgment of June 10, 2008, the higher supervisory authority dismissed A.'s appeal.

Considerations

The Federal Tribunal dismissed A.'s appeal against the judgment of the higher supervisory authority.

When it comes to realizing a share of a community, it is up to the supervisory authority to determine the method of realization. After consulting the interested parties, the authority may order a public auction, entrust the realization to a manager or take any other measure. However, the OPC provides for more specific measures that restrict the power granted to the supervisory…