Appeal against the order for the provision of security by the seizing creditor

Facts

[A.] requested and obtained from the Justice of the Peace of the district of Lugano the seizure of a property belonging to the company C. SA against B. Upon granting the seizure, a guarantee was ordered pursuant to Art. 273 DEBA. [A.] appealed against the guarantee order, requesting its revocation or reduction. The debtor B. filed an objection against the seizure decision, also requesting an increase in the guarantee. The Justice of the Peace suspended the objection proceedings pending the decision on the appeal. The Enforcement and Bankruptcy Chamber of the Court of Appeal dismissed A.'s appeal and confirmed the guarantee order. [A.] then filed a public law appeal against the cantonal decision.

Considerations

The Federal Tribunal declared the appeal inadmissible. Although the contested decision was not a final cantonal decision, the Federal Tribunal wished, by way of obiter dictum, to highlight the following:

The judge may ex officio oblige the seizing creditor to provide a guarantee in the seizure order itself. Against this order, the DEBA provides for an objection procedure (Art. 278 DEBA). Within the framework of this procedure, the parties may express their views and make requests on all points of the seizure order, including the guarantee. The debtor may thus request an increase and the creditor a reduction or the removal of the guarantee. This objection procedure, including the appeal to the higher judicial authority, is…