Denial of Suspensive Effect in Appeal against Notification of Realisation Request

Facts

In debt enforcement proceedings for the realisation of a pledge, [Z. AG] applied for the realisation of a property. The debtors and pledgors [X.] and [Y.] filed an appeal against this with the Cantonal Court of Bern. They requested that the notification of the realisation request be declared null and void or revoked, and applied for the granting of suspensive effect.

The Cantonal Court dismissed the request for suspensive effect, as this measure was not justified based on the case file. [X.] and [Y.] appealed this decision to the FSCA.

Considerations

The FSCA sets aside the decision of the Cantonal Court and remands the case for a new decision to the lower instance. The contested decision does not meet the legal requirements for reasoning, as it merely states that the granting of suspensive effect is not justified based on the case file, without going into further detail.

The FSCA explains that the granting of suspensive effect in debt enforcement law is the exception and depends on a balancing of the interests in the continuation of the enforcement…