Facts
The [A. AG] (pledge owner) appealed the decision of the Court of the Canton of Graubünden, Debt Enforcement and Bankruptcy Chamber as supervisory authority over debt enforcement and bankruptcy dated 21 December 2022 (KSK 22 56). The subject of the proceedings was the revaluation of three plots of land (Sxxx, Syyy, Szzz) in the municipality of [U.] , which was carried out as part of a forced sale procedure under mortgage law by the Enforcement Office of the Maloja Region.
On 16 March 2022, the Enforcement Office communicated the enforcement valuation of the plots: CHF 5'150'000.-- for plots Sxxx and Syyy and CHF 1'170'000.-- for plot Szzz. The debtor [B.] and the pledge owner [A. AG] applied to the Cantonal Court for a revaluation by an expert. With a decision dated 5 May 2022, the Cantonal Court ordered the revaluation and instructed the Enforcement Office to obtain a new valuation by experts after payment of the advance on costs. The [A. AG] appealed this decision to the Federal Supreme Court (judgment 5A_370/2022 dated 24 November 2022), which set aside the Cantonal Court’s decision due to a violation of the duty to state reasons (Art. 29 para. 2 Cst.). The Cantonal Court confirmed its original position with a decision dated 21 December 2022 without amending the operative part. The [A. AG] then filed an appeal with the Federal Supreme Court on 12 January 2023, requesting that the matter be referred back to the Cantonal Court for the appointment of an expert and for compliance with certain procedural steps, in particular the hearing of the parties and the submission of supplementary and explanatory questions.
Considerations
The Federal Supreme Court examined whether the Cantonal Court had violated federal law by delegating the revaluation to the Enforcement Office. The appellant argued that, by referring the matter back to the Enforcement Office without selecting the expert itself and without complying with the procedural provisions of the Civil Procedure Code (CPC) – in particular Art. 183 para. 1 CPC (hearing of the parties before expert opinion) and Arts. 185 et seq. CPC (expert instruction and supplementary questions) – the Cantonal Court had violated the right to be heard (Art. 29 para. 1 in conjunction with Art. 30 para. 1 Cst.).
The Federal Supreme Court clarified that the revaluation under Art. 9 para. 2 FSREO does not constitute a judicial expert opinion within the meaning of the CPC, but remains an enforcement office action. Therefore, the procedural provisions of the CPC are not directly applicable. Although the supervisory authority is responsible for ordering the revaluation, it may delegate certain enforcement actions – such as the selection of the expert and the determination of the advance on costs – to the Enforcement Office. This delegation is compatible with federal law provided that the parties’ right to be heard is preserved. The Enforcement Office must give the parties an opportunity to comment on the expert’s person before their appointment and to raise any grounds for challenge or objections to their professional suitability. The supervisory authority remains responsible for determining the relevant…