Facts
In the bankruptcy of Ernst Ritschard, ten properties in Hilterfingen, Oberhofen, and Thun were realized. The Cantonal Bank of Bern had mortgage rights on these properties as security for granted loans. Additionally, there were mortgage rights of the Swiss Credit Institution in Bern on the properties Hilterfingen No. 275 and Oberhofen No. 103. For the debt on the property Hilterfingen No. 275, Josef Stöckli and Josef Stucki had also acted as joint and several guarantors.
The Bankruptcy Office Thun wanted to cover the shortfall of CHF 41,090.-- from the realization of the property Oberhofen No. 754 from the surplus proceeds of the other properties, which would have led to a significant loss for the subordinate creditors on the property Hilterfingen No. 275. Against this, the Swiss Credit Institution as well as the guarantors Josef Stöckli and Josef Stucki filed a complaint.
Considerations
The Federal Supreme Court concluded that the Cantonal Bank of Bern did not have a unified overall mortgage right on all ten properties, but only individual mortgage rights, as the mortgage amounts entered in the encumbrance registers differed from property to property.
Although the encumbrance registers contained an overall mortgage clause, the Federal Supreme Court was of the opinion that this had only a subsidiary character. It only came into effect in the event of a mortgage shortfall, in order to make the mortgaged properties whose realization had resulted in a surplus jointly liable for the shortfall claim.
In the distribution of the realization proceeds to cover the shortfall claim,…