Facts
The dispute opposes [A.] and B. SA (hereinafter: [B.]) regarding a mortgage loan of 4'300'000 fr. granted to [A.] by [B.] on 26 February 2013. The loan was secured by three mortgage certificates in bearer form encumbering an apartment in PPE located on route C. in U., owned by A.
On 21 November 2016, [B.] initiated a proceeding for the realization of a mortgage pledge against [A.] for an amount of 72'410 fr. plus interest, based on the mortgage certificates in bearer form of 2'000'000 fr. of 12 July 2011 in 1st rank, of 1'540'000 fr. of 12 February 2007 in 2nd rank and with equal ranking, and of 760'000 fr. of 19 April 2011 in 2nd rank and with equal ranking.
[A.] did not file an opposition to this payment order. Subsequently, [B.] requested the provisional lifting of the opposition formed by [A.] to a new payment order notified on 29 August 2017, producing the aforementioned mortgage certificates.
Considerations
The main issue at stake is the evidence on which the judge of the lifting can rely to establish whether the plaintiff is entitled to a provisional lifting title. According to art. 82 DEBA, the creditor whose proceeding is based on a debt recognition established by a public deed or a private signature can request the provisional lifting.
The provisional lifting procedure is a procedure on documents, the purpose of which is not to establish the reality of the claim in pursuit, but the existence of an enforceable title. The judge of the lifting examines only the probative force of the title produced by the plaintiff, its formal nature, and attributes enforceable force to it if the defendant does not immediately make their liberatory means plausible.
In this case, the cantonal authority violated art. 82 DEBA by relying on the statements of the defendant at the hearing before the first judge and on the fact that…