Facts
Bank X obtained the forced sale of four plots of land encumbered in the first rank by two mortgage certificates with nominal amounts of 10,500,000 fr. and 1,000,000 fr., respectively. Bank X acquired the plots of land in question for the price of 12,000,000 fr., which it paid by offsetting its claim. After settlement of the sale and distribution costs, the enforcement office issued a certificate of mortgage insufficiency to the creditor for the amount of 1,440,196 fr. 75.
Bank X filed a complaint against the decision of the office to proceed with the partial amortization of its mortgage certificates, concluding with the reinstatement of their nominal values. The cantonal supervisory authority admitted that it was necessary to reduce the nominal amount of the disputed mortgage certificates, but to the amount of 9,185,037 fr. 75 and 874,765 fr. 50, respectively.
Considerations
The Chamber of Enforcement and Bankruptcy of the Federal Court dismissed the plaintiff's appeal insofar as it was admissible. According to case law and doctrine, the mortgage right expires not only when the proceeds of the realization allow for the complete satisfaction of the creditor, but also when the claim remains partially or totally unpaid.
Art. 156 DEBA, however, expressly reserves contrary agreements. The cancellation of mortgage certificates given as security does not have to be requested when it has been agreed, in a regular and lawful manner, that instead of payment of the claim secured by the certificate, there will be a takeover of…