Facts
In the context of the bankruptcy of Stebler AG, Swiss Bank asserted a claim of CHF 1,215,218.65, secured by a first-rank mortgage deed of CHF 360,000 on two parcels, as well as by liens on mortgage bonds of CHF 660,000 in ranks 2 to 5. The bank claimed the extension of the lien to rents and leases accrued since the opening of the bankruptcy pursuant to Art. 806 para. 1 CC. The bankruptcy administrator rejected this claim. The bank then filed a collocation action.Considerations
The Federal Tribunal considers that, although the bank is only a pledgee and not a mortgagee, it can invoke the right under Art. 806 para. 1 CC to extend its lien to rents and leases accrued since the opening of the bankruptcy. Indeed, when mortgage bonds belonging to the owner are pledged, the pledgee is in a similar situation to that of the mortgagee and must be able to benefit from the same rights, in particular the right to be paid from the proceeds of the rents and leases under Art. 806 CC.
According to the prevailing case law and doctrine, the pledgee of mortgage bonds belonging to the owner of the encumbered property can, in the bankruptcy of the latter, be paid directly from the proceeds of the realization of the property, like the mortgagee. It can…