Facts

The case concerns a procedure for realizing a property, in the course of which the Betreibungsamt Hausen am Albis issued an auction order on 28 May 2010. The debtor, X., lodged an appeal against this order on 4 June 2010, arguing that the property was under seizure in the context of a criminal procedure. The appeal was dismissed by the district court of Affoltern on 10 August 2010. Subsequently, X. lodged an appeal against the decision on the taxation of procedural costs issued by the Betreibungsamt on 9 August 2010, which was dismissed by the cantonal supervisory authority on 8 March 2012.

The key facts are as follows

  • The Betreibungsamt Hausen am Albis issued an auction order on 28 May 2010.
  • X. lodged an appeal against this order on 4 June 2010.
  • The appeal was dismissed by the district court of Affoltern on 10 August 2010.
  • X. lodged an appeal against the decision on the taxation of procedural costs issued by the Betreibungsamt on 9 August 2010.
  • The appeal was dismissed by the cantonal supervisory authority on 8 March 2012.

Considerations

The decision of the Federal Court is based on the interpretation of articles 22 and 44 of the Federal Act on Debt Collection and Bankruptcy (DEBA). The Federal Court considered that the decision of the cantonal supervisory authority was contrary to federal law, as it had not taken into account the nullity of the auction order of 28 May 2010.

The Federal Court recalled that, according to case law, a decision on the taxation of procedural costs can only be issued if the realization procedure is regular. However, in this case, the realization procedure was flawed by the nullity of the auction order, which had been issued without the legal conditions being met.

The…