Facts
On 25 January 1985, a seizure was carried out in the context of several proceedings, including that of [B.] against N. The seized assets were estimated at 31'440 Swiss francs. On 26 April 1985, [B.] requested the realization of the seizure for an amount of 4'842 Swiss francs plus interest and enforcement costs. The enforcement office required [B.] to pay an advance of 1'200 Swiss francs for the realization costs, under penalty of considering the request for realization as withdrawn.
B.'s appeals against this decision were rejected by the cantonal and federal authorities. The Chamber of Enforcement and Bankruptcy of the Federal Court also rejected B.'s appeal, considering that the creditor who requests the realization must advance the costs, even if the realization and distribution costs can be covered by the proceeds of the sale.
Considerations
The Debt Enforcement and Bankruptcy Act (DEBA) provides that any creditor who requests the sale must advance the costs (Art. 68 para. 1 DEBA). When a creditor of a subsequent series has requested the sale, the office must first deduct the realization and distribution costs and, consequently, refund the advance made (Art. 144 para. 3 DEBA).
The Federal Court considered that the prospect that the realization and distribution costs will be covered by the proceeds of the sale does not exempt the creditor who requested it from advancing the costs. Indeed, Art. 144 DEBA and Art. 68 DEBA govern two different things, namely the priority of payment of realization and distribution costs and the obligation of the creditor to advance the costs.
The Federal Court also considered that the creditor who requests the realization may hope that the advance will be refunded after the realization, but…