Facts
Bank X. initiated debt enforcement proceedings for the realisation of a mortgage lien against Y. and Z. As a title for discharge, it invoked a mortgage deed (Namenschuldbrief) that had been transferred to it as security. The court of first instance only granted provisional discharge for the claim, and not for the mortgage lien, on the grounds that Y. and Z. were not designated as debtors in the mortgage deed. The bank appealed against this decision, but the appeal was dismissed by the Cantonal Court. The bank then filed an appeal with the Federal Supreme Court.Considerations
The Federal Supreme Court dismisses the appeal. It considers that the mortgage deed forms an inseparable unit between the secured claim and the mortgage lien. Therefore, if the mortgage deed does not mention the debtors being pursued, it cannot serve as a title for provisional discharge, neither for the claim nor for the mortgage lien. The Cantonal Court did not, therefore, violate federal law in refusing provisional discharge for the mortgage lien.
The Federal Supreme Court notes that when the secured claim…