Facts
In the bankruptcy liquidation of [N.], Ms. [M.] filed a claim of CHF 367,102.15 which she claims is secured by a mortgage. This mortgage had initially been established by [N.] in favor of Mr. [M.] on June 4, 1965 to secure any potential claims of the latter against N. On June 15, 1965, Mr. [M.] assigned this mortgage to Ms. M.
The bankruptcy estate of [N.] disputes that Ms. [M.] can invoke this mortgage to secure her own claim, on the grounds that the mortgage has never served to secure anything other than a future and uncertain claim of Mr. [M.] against [N.], which ultimately did not materialize.
Considerations
The Federal Tribunal upholds the appeal of the bankruptcy estate. It considers that the transfer of a mortgage from one claim to another, even in favor of the same creditor, would require the execution of a new authentic act, which was not done in this case.
Furthermore, the mortgage has never directly secured the contractual claims of Mr. [M.] against [N.], but only the debt of CHF 2,000,000 of [N.] towards Mr. [M.], mentioned in the real estate pledge…