Refusal to pay advance payments to the pursuing creditor in the absence of recognition or judicial establishment of the claim

Facts

Within the framework of eight foreclosure proceedings on real estate collateral exercised by Foundation X. (the creditor) against Y. (the debtor), legal administrations have been established on various properties. The debtor has objected to all these proceedings and an action is currently pending before the Court of First Instance of Geneva, in particular concerning the maturity, the amount and the interest rates of the claims at stake. The creditor has requested the debt collection office to pay her the amounts collected within the framework of the proceedings as of October 31, 2003, after deduction of the administration fees and charges, considering that the rents collected should accrue to her. The office rejected this request based on Art. 95 para. 1 FSREO, which only allows the payment of advance payments to the pursuing creditor if the claim has been recognized by the debtor or judicially established by a final decision. The creditor contested this decision by way of a complaint, which was rejected by the Cantonal Supervisory Commission.

Considerations

The Debt Collection and Bankruptcy Chamber of the Federal Tribunal dismissed the creditor's appeal. It considered that Art. 95 para. 1 FSREO allows no margin of discretion and that, since the condition provided for in this provision (debt recognized by the debtor or judicially established) was not met in this case, the payment of advance payments was excluded. The fact that the debtor had consented to the payment of the advance payments was not to be taken into account…