Facts
The Enforcement and Bankruptcy Court of the Cantonal Tribunal of the Canton of Vaud dismissed the appeal of A.A. and B.A. against the decision of the Justice of the Peace of the District of Lausanne, which had granted the provisional release of the opposition filed by the spouses to the payment order in a foreclosure proceeding on a real estate lien. The Federal Tribunal subsequently dismissed the appeal of the spouses.
The debt collection was based on three bearer mortgage deeds pledged as collateral to Bank C. SA. The spouses argued that the fiduciary transfer of ownership of the deeds by the wife was null and void, as the husband had not signed the deed of assignment, in violation of Art. 169 para. 1 of the Swiss Civil Code (CC) which requires the consent of the spouse for certain legal acts concerning the family home.
Considerations
The Federal Tribunal considered that the consent of the spouse is in principle necessary only if the mortgage burden exceeds approximately 2/3 of the market value of the non-agricultural property - or the ceiling set by Art. 73 of the Federal Act on Rural Land Law (LDFR) for agricultural properties. Beyond this limit, it is difficult to rely on the remaining market value to prevent a foreclosure…