Facts
Bank X. has initiated debt enforcement proceedings for the realization of a mortgage against V. concerning 49 condominium units (PPE) belonging to Company Y. These 49 units are encumbered by a bearer mortgage deed of CHF 7,800,000 in favor of Bank X. The Debt Enforcement Office of Geneva/Rhône-Arve has had the 49 units appraised, covering the price of each unit as well as the value of the building as a whole.
Bank X. requested the office to first proceed with a separate sale, and then a bulk sale of the 49 PPE units, in accordance with the procedure provided for in Art. 108 para. 1bis DEBA. However, the office rejected this request, citing Arts. 107 and 108 DEBA.
Bank X. then appealed to the Debt Enforcement and Bankruptcy Chamber of the Swiss Federal Tribunal to obtain an order for the office to conduct the auction sale of the 49 PPE units according to the two-step procedure requested.
Considerations
The Debt Enforcement and Bankruptcy Chamber upheld the appeal and amended the contested decision in the manner requested by Bank X.
Indeed, the 49 PPE units belong to the same owner and are encumbered by the same mortgage deed, thus constituting a collective mortgage within the meaning of Art. 798 para. 1 CC. In this case, the creditor must simultaneously pursue the realization of all the properties, but the debt enforcement office will only sell as many as necessary to cover the claim of the pursuing creditor and the claims secured by the property that take precedence over that of the pursuing party (Art. 816 para. 3 CC and Art. 107 para. 1 DEBA).
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