Facts

On 31 August 2004, the enforcement office in Weinfelden auctioned a property registered in the land register of G., which was owned by the estate of F. (debtor). Due to several encumbrances ranking after the mortgage-secured claims, the mortgage creditor requested a dual call. In the first call, the property fetched a revenue of CHF 6,800,000.–, and in the second call – excluding the encumbrances ranking after the mortgage – CHF 8,005,000.–. After deducting the mortgage-secured claims and costs, a net surplus of CHF 763,541.49 remained.

The estate of E. (claimant 1) claimed the entire surplus as the value of the extinguished encumbrances. Claimants 2 and 3 (O. and P.) each demanded compensation of CHF 10,000.–. On 16 November 2004, the enforcement office published a new distribution list in which it recorded the value of the easements for claimant 1 as CHF 763,541.49 and did not allocate any share of the surplus to claimants 2 and 3. The latter were instructed to file a collocation action within 20 days if they wished to contest claimant 1’s entitlement.

On 29 November 2004, the debtor lodged an appeal against the distribution list, requesting that the entire surplus be assigned to it. At the same time, claimants 2 and 3 filed a collocation action with the District Court of Weinfelden on 31 December 2004, whereupon the proceedings were stayed. The Vice-President of the Court of First Instance in Weinfelden obtained an expert opinion on the value of the extinguished easements and, by order of 20 October 2005, awarded claimant 1 a portion of the surplus (CHF 127,164.20).

On 26 October 2005, claimant 1 appealed to the High Court of the Canton of Thurgau as the supervisory authority and requested that the debtor’s appeal be dismissed. Alternatively, it sought compensation for inconvenience (CHF 200,000.–) and immaterial values (CHF 200,000.–). By decision of 19 December 2005, the appeal was dismissed. Claimant 1 then filed an appeal with the Debt Enforcement and Bankruptcy Chamber of the Federal Supreme Court, seeking the annulment of the contested decision and the assignment of the entire surplus to it in accordance with the distribution list of 16 November 2004.

Considerations

The Federal Supreme Court first examined the admissibility of claimant 1’s appeal. It found that the appeal was formally deficient as it did not meet the requirements for an appeal. Nevertheless, the Chamber could intervene ex officio since the enforcement office’s order might have been void. An order is void if the enforcement authority clearly exceeds its substantive jurisdiction (Art. 22 DEBA).

In the present case, the dispute concerned the distribution of a surplus arising from a real estate auction with a dual call. Pursuant to Art. 116 para. 2 FSREO, the value of the encumbrances must be included in the distribution list, and the provisions of Arts. 147 and 148 DEBA apply mutatis mutandis. Any dispute over the amount of compensation for the extinguished encumbrances must be resolved in the collocation proceedings before the judge, not before the supervisory authority. This follows from the analogous application of Arts. 147 and 148 DEBA and from the Federal Supreme Court’s consistent case law (e.g. ATF 81 III 23, ATF 114 III 60).

The Federal Supreme Court emphasised that only those creditors who contest the collocation of another party are entitled to challenge the…