Facts
Company H. AG purchased two properties, numbers 1 and 2, as part of a pledge realization procedure. The properties are encumbered with mortgage certificates. The Betreibungsamt Solothurn decided to sell the properties by private sale to company H. AG. The company contested the decision of the Betreibungsamt, which provided for the cancellation of pledge rights and titles insofar as the personal debt was not taken over and the creditor was compensated by the proceeds of the sale of the pledge.
The key facts are as follows
- The value of the properties was estimated at Fr. 801'961.- and Fr. 832'000.- by the Gebäudeversicherung, and at Fr. 450'000.- and Fr. 500'000.- by the Betreibungsamt.
- The claims secured by the mortgage certificates amount to Fr. 1'276'152.85 and Fr. 5'002'115.20.
- Company H. AG contested the decision of the Betreibungsamt, which was confirmed by the cantonal court.
Considerations
The Court examined the question of whether the cancellation of pledge rights and titles in the case of a private sale is in accordance with federal law. The Court considered that the private sale of a property in a pledge realization procedure is subject to the same principle as a public auction, namely that pledge rights and titles must be cancelled insofar as the personal debt is not taken over and the creditor is compensated by the proceeds of the sale of the pledge.
The Court also considered that the provisions providing for the cancellation of pledge rights and titles are not mere procedural rules, but are intended to protect the rights of creditors and debtors. The Court also examined the question of whether an analogy…