Payment of Advance Payments on Rents and Leases in the Case of a Plurality of Pursuing Secured Creditors

Facts

In 1992 and 1993, banks X. and [Z.] initiated enforcement proceedings for the realization of real estate liens with extension to rents against V., for claims secured by liens encumbering the same properties. In 1995, bank [Z.] requested the sale of the properties and the distribution of the collected rents. The debt collection office then established a distribution schedule for the proceeds of the properties, the notice of deposit of which stated the distribution of a first advance payment to bank [Z.] corresponding to the total of the enforcement proceedings initiated by the latter. Bank X. contested this decision, arguing that the payment of advance payments should be made in compliance with the ranking of the claims that are the subject of enforcement proceedings for the realization of a lien, which required the prior establishment of a schedule of collocation.

Considerations

According to Article 95(2) of the Ordinance on the Forced Realization of Real Estate (FSREO), when several secured creditors are pursuing the debtor for the realization of liens encumbering the same property, the one among them who has proven that its claim has been recognized by the debtor or established by a final decision can only obtain the payment of advance payments on rents and leases with the agreement of all the others or after the establishment of a schedule of collocation, regardless of the stages at which the various enforcement proceedings are.

In the present case, the Federal Court ruled that the interpretation of the cantonal authority was erroneous. Indeed, even if only the pursuing creditors who have proven that their claim has been recognized by the debtor or established by a final decision…