Facts
On November 4, 2019, the bank filed a request for enforcement proceedings for the realization of a mortgage against B.A. for a claim secured by mortgage deeds encumbering parcels belonging to an agricultural business jointly operated by B.A. and his wife A.A. On November 8, 2019, the payment order was notified to B.A., who filed a total objection to it.
On October 1, 2021, A.A. requested the debt collection office that the payment order also be notified to her, on the grounds that the agricultural business could not be alienated without her consent. The office granted this request, but the bank filed a complaint to have this decision annulled. The cantonal court upheld the complaint and ordered the office not to notify the payment order to A.A.
A.A. appealed this decision to the Federal Tribunal.
Considerations
The Federal Tribunal dismissed the appeal. It considered that Art. 153 para. 2 let. b DEBA, which provides for the notification of the payment order to the debtor's spouse when the encumbered property is the family home, does not apply to the agricultural business jointly operated by the spouses. The legislator has deliberately excluded this situation from the scope of this provision, in contrast to the protection granted to the family home.
Although Art. 40 para. 1 ACLA provides that the alienation of an agricultural business jointly operated by the spouses requires the consent of the spouse, this provision does not create a gap in the DEBA that…