Facts

Parties: Appellants [A.] and [B.] against the Bern-Mittelland bankruptcy office and [C. AG] .

Facts:

  • The building right of [D. AG] was established as an independent and permanent right (SDR) and is registered as real estate Gbbl. SDR-Münsingen 1 No. xxx. It is burdened by the sub-building right established on 21 January 2014, which is registered as SDR building right in favor of Gbbl. SDR-Münsingen 1 No. yyy. The encumbrance of the real estate was carried out without the consent of prior mortgage creditors. Entitled to the sub-building right are [A.] and [B.] .
  • Bankruptcy proceedings against [D. AG] were opened by decision of the Regional Court of Bern-Mittelland on 31 January 2022. Among the assets of the bankruptcy estate is the building right Gbbl. SDR-Münsingen 1 No. xxx.
  • On 7 November 2022, the bankruptcy office notified the parties entitled to the sub-building right, [A.] and [B.] , of the public auction of the building right SDR-Münsingen 1 (Münsingen) No. xxx on 8 December 2022. It was communicated that various mortgage creditors had timely requested the double call pursuant to Art. 142 DEBA in conjunction with Art. 56 FSREO.
  • On 8 December 2022, the building right SDR-Münsingen 1 No. xxx was publicly auctioned. The bid was awarded to [C. AG] in the sixth call without the burdens A, B, and C and thus without their transfer to the successful bidder.
  • Against the award, [A.] and [B.] applied to the Bern Cantonal Court as the cantonal supervisory authority in enforcement and bankruptcy matters, which dismissed the appeal with a decision of 21 February 2023.
  • By submission of 6 March 2023 (postal deposit), [A.] and [B.] filed an appeal in civil matters. The appellants request the annulment of the higher court's decision. In substance, they demand that the increase surcharge of 8 December 2022 to [C. AG] be set aside due to nullity (appeal request item 1a). Alternatively, it is to be established that, due to partial nullity, the sub-building right in favor of Gbbl. SDR-Münsingen 1 No. yyy - i.e., burden B - is "excluded" from the increase surcharge (appeal request item 1b).

Considerations

The appeal in civil matters is admissible against the decision of the cantonal supervisory authority on debt enforcement and bankruptcy (Art. 19 DEBA in conjunction with Art. 72 para. 2 lit. a, Art. 74 para. 2 lit. c and Art. 75 para. 1 FSCA). The appellants are affected in their protected interests and are entitled to appeal (Art. 76 para. 1 lit. b FSCA). With the present appeal, in particular, the violation of federal law can be challenged (Art. 95 lit. a FSCA).

The Higher Court has stated that the double call requested by the mortgage creditors pursuant to Art. 142 DEBA and Art. 56 FSREO must be carried out "staggered" if several easements are burdened on the real estate to be realized. The building right SDR-Münsingen 1 No. xxx was first called with the three burdens A, B, and C (call No. 1). The provisional award to [E. AG] (for CHF 2,760,000.-) had, however, not covered the total amount of the mortgage-secured claims (CHF 6,326,006.52). Since the shortfall had not been immediately compensated by the easement holders, the calls No. 2-5 had to be carried out staggered without burdens, without, however, any bids being made. Only the call No. 6 without the three burdens (A, B, and C) led to a bid of CHF 5,000,000.- and the corresponding award.

The appellants criticize the "scope of the auctioned object"…