Facts

Parties and Instances: The [A. AG] is the owner of two properties in [U.] and the mortgage debtor. Debt enforcement proceedings for enforcement of a mortgage No. zzzzzz were initiated against it by [B.] Bank AG. The respondents are [B.] Bank AG, [C. AG] (represented by attorney Christof Brack) and [D. AG] (represented by attorneys PD Dr. Michael Hochstrasser and Dr. Beat Denzler). The debt enforcement office [U.] is also affected.

Background to the Valuation:

  • 5 August 2013: The debt enforcement office valued the properties at CHF 54'000'000.--.
  • 4 September 2013: At the request of [A. AG] , the District Court of Uster, as the lower supervisory authority, ordered a new valuation and appointed [E.] as expert.
  • 7 March 2014: The expert report valued the market value at a total of CHF 60'160'000.--. It was based on two scenarios (existing building regulations with a valuation of CHF 56'130'000.--; a not yet final development plan with a valuation of CHF 64'200'000.--), which were each weighted at 50%. The lower supervisory authority instructed the debt enforcement office to adopt this value.
  • 16 June 2014: The Obergericht of the Canton of Zurich dismissed the appeal. The Federal Supreme Court confirmed this by judgment 5A_561/2014 of 27 November 2014 and in particular rejected the ordering of a second expert report.
  • 9 June 2015: The development plan became final.

Further Proceedings:

  • 8 May 2018: The debt enforcement office submitted a schedule for the realisation of the mortgage collateral. On 31 August 2018, [A. AG] applied for the adjustment and updating of the expert report. On 21 September 2018, the upper supervisory authority declined to hear the matter and referred the application to the debt enforcement office.
  • 4 October 2018: The debt enforcement office rejected the application. The lower supervisory authority confirmed this on 31 October 2018.
  • 21 December 2018 (PS180225-O/U): The upper supervisory authority set the relevant valuation at CHF 64'200'000.--, based on the second scenario of the expert report, and instructed the debt enforcement office to adopt this amount immediately.
  • 9 July 2019 (PS180099-0/U): In parallel, the appeal of [A. AG] concerning the appointment of an expert [F.] to assist the debt enforcement office with the realisation was upheld. This proceeding is pending separately before the Federal Supreme Court (5A_596/2019).

Proceedings before the Federal Supreme Court: On 17 January 2019, [A. AG] filed a civil law appeal. It requests that the judgment of the Obergericht be set aside and the matter be remitted to the lower court, alternatively to the first instance, and subsidiarily to the debt enforcement office. In the alternative, the expert report by [E.] should be adjusted and updated to the changed conditions before it is brought to the attention of third parties. The application for suspensive effect was dismissed by presidential order of 26 February 2019. Only the cantonal files were obtained; no written responses on the merits were requested.

Subject Matter of the Dispute: The dispute concerns the extent to which the valuation from 2014, which has already become final, must be adjusted or updated due to intervening changes. The appointment of an expert for the auction is not the subject of the dispute.

Considerations

Admissibility: The civil law appeal is available against the decision of an upper cantonal supervisory authority in the context of compulsory enforcement (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 appellant, as debtor and owner, is particularly affected and therefore has standing (Art. 76 para. 1 lit. b FSCA). The violation of federal law may be complained of (Art. 95 lit. a FSCA). The complaint of violation of constitutional rights is subject to the principle of complaint (Art. 106 para. 2 FSCA). The Federal Supreme Court is bound by the facts established by the lower court, unless an exception under Art. 105 para. 1 FSCA applies; new facts and evidence are admissible only to a limited extent (Art. 99 para. 1 FSCA).

Principles on Valuation: Where the value of a property changes after attachment or after the filing of a realisation request, the question of adjusting a final valuation may arise. Legal certainty and the expeditious conduct of proceedings must be observed; a reduction of the attachment due to a changed valuation was therefore rejected (BGE 136 III 490 E. 4.4). In mortgage enforcement there is in principle only one valuation (Art. 155 in conjunction with Art. 97 DEBA, Art. 99 para. 1 FSCA). The valuation may be challenged, and a new valuation may be requested within the time limit for appeal (Art. 9 para. 2, Art. 99 para. 2 FSCA). After the lien clearance procedure, the debt enforcement office must examine on its own initiative whether the elimination of encumbrances affects the value (Art. 140 para. 3 DEBA; Art. 44 in conjunction with Art. 102 FSREO). In the event of a renewed auction due to default in payment, no new valuation is required (Art. 143 DEBA, Art. 64 para. 2 FSCA).

No Subsequent Correction of the Valuation: Subsequent criticism of errors that could already have been challenged originally is excluded. The appellant had the opportunity to review the expert report through the complaint under Art. 17 para. 1 DEBA and the request for a new valuation under Art. 9 para. 2 FSCA within the ten-day time limit; no further means of review exist. The investigation principle under Art. 20a para. 2 no. 2 DEBA does not alter this. The lower court was…