Decision of the prior secured creditor not to waive the principle of coverage of preferential claims

Facts

The Schweizerische Bankverein (SBV) initiated foreclosure proceedings against [R.] for a claim of CHF 32,365.20. The SBV then reported higher-ranking claims totaling CHF 235,411.65, secured by first and second-rank mortgage deeds. The Betreibungsamt (debt enforcement office) set a minimum auction price of CHF 235,411.65 to cover these preferential claims. The SBV contested this decision, arguing that secured creditors could waive the principle of coverage. The cantonal authorities upheld the SBV's objection. Debtor [R.] then appealed to the Federal Tribunal.

Considerations

The Federal Tribunal considers that the principle of coverage of claims secured by preferential pledges (Art. 141 in conjunction with Art. 126 DEBA) applies even when these claims belong to the same creditor as the claim being enforced. This principle aims not only to protect the rights of higher-ranking secured creditors, but also those of the debtor, who has a legitimate interest in the preferential pledges not being liquidated until the corresponding claims have been duly terminated and enforced.

Therefore, higher-ranking secured creditors cannot waive the application of the principle of coverage. The minimum auction price…