Facts
The appellant (debtor, co-owner with a one-half share of the property Gbbl.-Nr. xxx in [U.] ) was represented by attorney Ilija Penon. The opposing party was [C. AG] (mortgage creditor), represented by attorney Roger Lerf. The enforcement office was the Betreibungsamt Emmental-Oberaargau, Dienststelle Oberaargau.
On 19 March 2020, at the request of [C. AG] , the enforcement office served the appellant with the payment order in enforcement proceedings for realisation of mortgage security No. 220005834. The appellant lodged an objection (Rechtsvorschlag). On 9 July 2020 the Regional Court Emmental-Oberaargau granted provisional debt enforcement relief (provisorische Rechtsöffnung).
Because of the Covid-19 pandemic, the Federal Council had on 18 March 2020 ordered a general suspension of enforcement proceedings throughout Switzerland under Art. 62 DEBA, effective from 19 March 2020 to 4 April 2020. This was followed by the enforcement holidays under Art. 56 No. 2 DEBA until 19 April 2020, and the extension of time limits lasted until 22 April 2020. The service of the payment order therefore fell within the suspension period.
The appellant did not lodge a complaint under Art. 17 DEBA against the service and did not challenge the provisional debt enforcement relief by an action to deny enforcement under Art. 83 para. 3 DEBA. Following the request for realisation, the enforcement office commissioned a market value estimate; the appellant did not attend the inspection of 9 December 2020. On 28 December 2020 he first asserted to the enforcement office that the enforcement proceedings were null. The enforcement office dismissed the request for a declaration on 4 January 2021. The supervisory authority (Obergericht of the Canton of Bern) dismissed the complaint on 20 January 2021.
By appeal in civil matters of 5 February 2021, the appellant requested the annulment of the decision of the cantonal court and a declaration that enforcement proceedings No. 220005834 were null. The Federal Supreme Court dismissed the appeal, granted legal aid (unentgeltliche Rechtspflege) and set the court costs at CHF 800.--.
Considerations
The appeal in civil matters is admissible against a decision of a cantonal appellate authority on the nullity of enforcement proceedings, regardless of the amount in dispute (Art. 19 DEBA in conjunction with Art. 72 para. 2 lit. a FSCA). The debtor is aggrieved and has standing (Art. 76 para. 1 lit. a FSCA). The Federal Supreme Court reviews the application of federal law; it is bound by the facts established by the lower court, but may supplement them, in particular on the basis of the cantonal files (Art. 105 FSCA).
The service of a payment order during the general suspension of enforcement proceedings is an enforcement act within the substantive scope of Art. 62 DEBA. Under Art. 22 para. 1 DEBA, decisions are null if they contravene provisions enacted in the public interest or in the interest of uninvolved third parties; defective enforcement acts are as a rule merely challengeable and are null only exceptionally, where the defect is particularly serious. Existing case law (BGE 49 III 76; BGE 121 III 88; BGE 121 III 142; BGE 127 III 173) denies nullity for breaches of the protected periods and enforcement holidays. Legal scholarship (BAUER, GILLIÉRON, WYSSEN, FOËX/JEANDIN, PENON/WOHLGEMUTH) predominantly assumes nullity, whereas EICHEL/TURTSCHI assume mere challengeability.
The Federal Supreme Court follows the consequence of nullity: although the public interest in a functioning enforcement system is undisputed, the purpose of Art. 62 DEBA is to address a national calamity for a limited period. Service of the payment order during the suspension is therefore null.
The supervisory authority determines nullity of its own motion, but need only examine it where there are serious indications. The declaration must have a concrete benefit; the further the proceedings have advanced and the less the subsequent steps depend on the null act, the more this benefit is lacking. The appellant did not raise the defect in a…