Facts
In the context of an enforcement proceeding for the realization of a mortgage on immovable property brought against debtor A. and a third party D., the Geneva cantonal enforcement office published, by notice in the Swiss Official Commercial Gazette on 14 February 2020 and in the Official Gazette of the Canton of Geneva on 21 and 28 February 2020, the forced auction sale of two parcels of land held in undivided co-ownership between the defendants, scheduled for 29 September 2020. The Office also set a deadline of 5 March 2020 for mortgage creditors and holders of land charges to file their claims. It was indicated that the sale conditions and the charge status would be deposited with the Office as of 19 March 2020.
On 18 March 2020, due to the coronavirus pandemic, the Federal Council decreed a general suspension of enforcement proceedings pursuant to art. 62 DEBA, applicable from 19 March 2020 at 7:00 a.m. to 4 April 2020 at midnight. Despite this suspension, the Office sent, by registered letter on 19 March 2020, the charge status and the sale conditions to the counsel of debtor [A.], who received them on 23 March 2020. The Office drew the debtor’s attention to the fact that the charges listed in the charge status would be deemed to be acknowledged with regard to their existence, due date, amount and priority, unless contested within ten days with the Office.
On 27 March 2020, debtor [A.] filed a complaint with the Supervisory Chamber of the Enforcement and Bankruptcy Offices of the Canton of Geneva against the communication of the charge status of 19 March 2020, seeking its annulment, and in the alternative its cancellation, on the ground that it violated the Federal Council’s ordinance of 18 March 2020. He also contested the charge status itself, challenging the amounts of certain claims secured by mortgage. In addition, he requested a new valuation of the properties and a deadline of 31 July 2020 to submit a private sale offer pursuant to art. 143b DEBA. The Supervisory Chamber declared the complaint admissible insofar as it was directed against the communication of the charge status and sale conditions, partially admissible insofar as it was directed against the charge status, and inadmissible in all other respects. On the merits, it dismissed the complaint to the extent that it was admissible.
Debtor [A.] filed an appeal in civil matters with the Federal Supreme Court, primarily seeking the reform of the cantonal decision to the effect that the communication of the charge status of 19 March 2020 is null and void on the ground that it was made in violation of art. 56 para. 3 DEBA during the period of suspension of enforcement proceedings ordered by the Federal Council. The appeal was granted suspensive effect.
Considerations
The Federal Supreme Court examined whether the communication of the charge status of 19 March 2020 constituted an enforcement measure within the meaning of art. 56 para. 3 DEBA. According to settled case law, an enforcement measure is any official action by an enforcement authority that brings the creditor closer to its goal and affects the debtor’s legal position. The communication of the charge status meets these criteria, since it triggers a ten-day period within which the debtor must contest the charges listed in the charge status, failing which they will be deemed to be acknowledged for the enforcement proceedings. This communication therefore constitutes an enforcement measure preparatory to the forced realization of the immovable properties, pursuant to art. 140 para. 2 DEBA and art. 37 para. 2 FSREO.
The Federal Supreme Court recalled that the general suspension of enforcement proceedings decreed by the Federal Council under art. 62 DEBA prohibits any measure of forced execution during the suspension period. This prohibition is intended to protect the debtor against coercive measures during an exceptional period, such as the coronavirus pandemic. The communication of the charge status, although preparatory, is an official measure having immediate legal consequences for the…