Facts

This judgment concerns a procedure for the realization of a mortgage. The debtor, H., was pursued by his creditors for the realization of his property, R. The debt collection office proposed to divide the property into two plots, which was accepted by all creditors, except for the last-ranking mortgage creditor and the debtor himself. The debt collection office then requested authorization from the cantonal supervisory authority, which granted this authorization under Article 18 paragraph 2 of the Ordinance on Debt Enforcement and Bankruptcy (FJA). The debtor lodged an appeal against this decision with the Chamber of Debt Enforcement and Bankruptcy of the Federal Court.

The key facts of the case are as follows

  • The debtor, H., was pursued for the realization of his property, R.
  • The debt collection office proposed to divide the property into two plots.
  • All creditors, except for the last-ranking mortgage creditor and the debtor, accepted this proposal.
  • The cantonal supervisory authority granted authorization to divide the property under Article 18 paragraph 2 FJA.
  • The debtor lodged an appeal against this decision with the Chamber of Debt Enforcement and Bankruptcy of the Federal Court.

Considerations

The Chamber of Debt Enforcement and Bankruptcy of the Federal Court examined the question of whether the debt collection office could divide the property in the context of an exceptional measure. The chamber considered that the division of the property constituted a measure that went beyond the simple administration and exploitation of the property, and that the debt collection office was not authorized to take such measures, even with the agreement of the cantonal supervisory authority.

The chamber also examined the question of whether the debt collection office could divide the property when setting the conditions for the auction. The chamber considered that this question did not need to be decided in the context of the present case, as the division of the property had already been authorized by the cantonal…