Facts
Bank [X.] had initiated enforcement proceedings against [Y.] for the realization of a mortgage on a property. The enforcement office [B.] had noted a restriction on disposal on the debtor's property based on the creditor's request for realization. The debtor [Y.] filed an appeal with the lower supervisory authority and requested that the auction notice and auction advertisement be adjusted to the actual circumstances and that the planned auction be postponed. The lower supervisory authority revoked the auction notice because the object of realization had been blocked by a ruling of the court of the canton of Schwyz and could therefore not be sold.
Bank [X.] appealed to the Cantonal Court of Schwyz as the higher supervisory authority in debt enforcement and bankruptcy and requested that a new date be set for the auction of the property. The Cantonal Court dismissed the appeal. Bank [X.] took the case to the Debt Enforcement and Bankruptcy Chamber of the Federal Court and requested that the contested decision and the decision of the District Court of March be revoked and that the enforcement office [B.] be instructed to continue the realization of the property and to auction it off.
Considerations
The Federal Court is bound by the factual findings of the supervisory authority. The lower court has established that the criminal seizure of the property took place before the restriction on disposal by the enforcement office [B.] . The seizure was made with a view to a later confiscation of a genuine surrogate pursuant to Art. 59 para. 1 SCC.
The appellant argues that the criminal procedural seizure does not take precedence over the attachment rights of enforcement. However, the Federal Court has already ruled that the criminal procedural seizure must take precedence over the attachment rights of enforcement, regardless of temporal priority,…