Facts
In the bankruptcy proceedings of Y. AG, the claim of X. was conditionally collated in the 5th class under no. 28 at the value of the opening of the bankruptcy. This claim originated from a loan to Y. AG, which was secured by the fiduciary transfer of seven mortgage deeds on three properties owned by Y. AG. Additionally, interest not covered by the mortgage deeds due to the passage of time was collated in the 5th class under nos. 21-27.
X. and the O. AG controlled by her later purchased the three properties of Y. AG. The purchase price was settled by assuming the mortgage-secured debts and transferring the remaining amount. The claim secured by the seven mortgage deeds was offset against the purchase price at the current value.
In the context of the third provisional distribution list, X. received the difference between the loan claim including interest and the offsetting carried out on the occasion of the property purchase for the claims collated under nos. 21-27. The bankruptcy administration set a deadline for X. to file a lawsuit for the payment of the retained amount, threatening that if the deadline expired unused, the reduction of the bankruptcy dividend would be deemed accepted.
Considerations
a) The fiduciary transfer of mortgage deeds for loan collateral is recognized in doctrine and practice, even though there is no explicit legal basis for it. The creditor becomes the unlimited legal owner of the mortgage deeds, but must account for this transaction and release any surplus.
b) Since the plaintiff has deducted the…