Foreclosure auction (Germany)
The compulsory auction (subhastation) is an enforcement procedure that is regulated in the law on compulsory auction and compulsory administration (ZVG) (see reference in Section 869 of the Code of Civil Procedure ).
purpose
The foreclosure auction is the enforcement of a claim with state power. The obligee has the option to enforce a monetary claim in the immovable property and thus to satisfy his claim. Immovable property is land and its structures, residential property, partial ownership and rights equivalent to land such as heritable building rights . Aircraft and ships are treated in the same way as immovable objects, provided they are entered in a register. Special regulations apply to their recovery. The main law for the foreclosure auction is the law on the foreclosure auction and administration of March 24, 1897, last amended on May 24, 2016, usually abbreviated as ZVG .
A special form of compulsory auction is the division auction to dissolve the community ( Section 180 ZVG ).
In contrast to compulsory administration , which aims at the income from a property, the foreclosure auction leads to the realization of the substance.
Jurisdiction
The procedure is carried out at the local court as an enforcement court . This is known as factual jurisdiction . The local court in whose district the property is located is responsible; Not infrequently, however, the jurisdiction for the auction is concentrated in one district court for the districts of several district courts.
Aircraft are auctioned off centrally by the Braunschweig District Court . The seat of the Federal Aviation Office is in Braunschweig ; the seat of the office is decisive for the competent enforcement court.
The Rechtspfleger is functionally ("personnel") responsible ( § 3 No. 1 i RPflG ). Applications for the record of the office are taken by the registrar of the office.
Procedure
Request
The foreclosure auction by way of foreclosure must be requested by a creditor (operating creditor). This can be the creditor of a right entered in the land register ( real creditor) or the creditor of another monetary claim (personal creditor).
The Rechtspfleger checks whether the application is correct and whether the formal requirements for ordering the foreclosure auction are met. The prerequisites for this are the submission of an enforcement order , the proper enforcement clause and the delivery of the enforcement order and the enforcement clause. The court shall deliver the decision on the arrangement of the proceedings to the debtor and possibly also to the obligee . Involved in the foreclosure auction are the debtor (e.g. property owner), the operating creditor and those whose interests result from the land register, in particular the creditors of other rights. Depending on the situation in the proceedings, other parties involved may also be involved during the proceedings . Tenants can also become involved in the procedure by registering their claim.
The delivery of the order resolution to the debtor or the receipt of the registration request at the land registry counts in favor of the obligee as a seizure of the property.
At the request of the enforcement court, it is noted in Section II in the land register that the foreclosure auction has been ordered. This entry destroys the public belief in the land register regarding the non-existence of a seizure.
Other creditors can join the foreclosure auction. The same requirements and effects apply to the decision to join. The decision to join becomes effective when it is served on the debtor. Although the auction process is the same, the creditors who run the auction are independent of one another. For example, the proceedings can be discontinued or canceled separately for each individual creditor.
Appeal
An immediate complaint against the decisions of the enforcement court is permissible for both the creditor and the debtor at the competent regional court .
Temporary suspension at the request of the debtor
The debtor has the option of applying for the foreclosure auction to be discontinued in accordance with Section 30a ZVG. The application must be submitted within two weeks from the delivery of the decision to order or join. This application has a chance of success if the debtor can prove that he can meet the obligee's demands. In this case, the foreclosure auction will be suspended for a maximum of six months. The court can make the suspension of the foreclosure sale dependent on conditions, for example an appropriate payment in installments.
Furthermore, the debtor can apply for temporary suspension in accordance with Section 765a ZPO if the auction is associated with immoral hardship or if there is a risk to life and limb. In both cases, the debtor must provide appropriate evidence to the auction court. In the case of danger to life and limb, a medical certificate must be submitted regularly. If the application is rejected by the auction court, an immediate appeal to the competent regional court is permissible. The jurisprudence was not uniform. There have also been courts which believe that the psychogenic disturbances of an enforcement debtor can be better dealt with through a speedy auction process than through further delay. In its rulings, however, the Federal Court of Justice (BGH) ruled that z. B. in the case of (medically attested) suicide risk, the auction is to be temporarily suspended.
According to jurisprudence and literature, immoral hardship exists in different ways if, contrary to morality , minor claims are also collected and the less drastic route (e.g. an attachment of an account) is not chosen in order not to harm the debtor or co-owner unnecessarily. The literature basically accepts the unconstitutionality of such an approach, since it is assumed that the principle of proportionality is violated and that there is insufficient need for legal protection .
Most courts, however, see it differently; Although they do not generally deny the possibility of a lack of need for legal protection, they set quite high hurdles here, in accordance with the ban on harassment according to § 226 , so that generally only a deadline for minor claims is recognized. Due to the higher level of creditor protection and the special mandate of the state, the case law only accepts the principle of the “safest way” in very rare cases, i.e. the principle that only the least drastic means should be used in a debt collection. So it is controversial whether a weighing and sequence must take place in the execution; This question was answered in the negative by the Federal Court of Justice after it was affirmed by the Chemnitz Regional Court as the lower instance.
On the other hand, there is a different opinion of the judge of the Federal Constitutional Court Werner Böhmer , who took the view that the constitutional complaint [...] was successful not only because of disregard of the right to effective legal protection, but also because of violation of the material fundamental right BVerfGE 49, 220 (228 f .) have to. It is not in accordance with the constitutional principle of proportionality if the foreclosure auction is carried out on the basis of a dubious minor claim and the creditor has not previously attempted satisfaction through other enforcement measures. So he saw it as disproportionate if the creditor did not first take less drastic measures. He also saw the property guarantee violated.
A certain case law is accordingly not available.
Temporary suspension at the request of the obligee
Every creditor who carries out the procedure has the option of canceling the foreclosure sale in accordance with To have § 30 ZVG temporarily suspended. To this end, he “approves” the temporary suspension. This approval can be given at any time during the proceedings in order to conduct out-of-court negotiations with the debtor, or for procedural tactical reasons, e.g. B. to deny the award of an unsatisfactory highest bid from the perspective of the obligee. The creditor can only approve the temporary suspension twice. The third authorization to discontinue the auction counts as a withdrawal of the auction application and leads to the cancellation of the procedure.
Before the auction date
Before the auction date, the enforcement court must determine the market value of the auction object. This determination of the market value is used to determine the value limits for certain creditor and debtor protection rights in the auction date.
As a rule, the court will first appoint and hear an expert before determining the market value . He will inspect the property and give those involved in the proceedings the opportunity to name circumstances that affect the value. Existing reports or reports prepared on behalf of the parties can also be used alone or in addition to form the basis for determining the market value. The value of the auction object determined in this way and, if applicable, market value appraisals will be made known to those involved in the proceedings for their comments. The judicial officer then sets the market value of the property by resolution. This decision can be challenged by all parties involved with a complaint .
All evidence pertaining to the property, i.e. in particular reports and documents that were provided by those involved in the market value assessment procedure, can be viewed by interested parties.
After the market value has been determined, the auction date will be determined. As a rule, 9 to 12 months pass between the order of the foreclosure auction and the determination of the auction date, regionally also up to 24 months. The date will be announced by publication on the Internet or the official journal. In addition, there is usually a notice in the district court.
Auction date
The auction date is public. Everyone has access ( § 169 GVG ). It consists of three parts: the announcements ( § 66 ZVG), the bidding time ( § 73 ZVG) and the hearing of those involved about the award ( § 74 ZVG).
Notices
Before the actual auction, the judicial officer reads out the entries in the land register and designates the creditors who have applied for the foreclosure auction (operating creditors) . The “ lowest bid ” is also set up in the announcement section. It contains the rights remaining due to the priority entry in the land register and the part of the lowest bid to be paid in cash; these are at least the costs of the auction process; Often there are also open public-law burdens (e.g. property taxes) as well as ancillary benefits of the remaining rights. The remaining rights are of particular importance for those interested in bids.
The subject of the announcement is also the copayment or replacement amounts. These are cash benefits that a bidder has to pay in addition to his bid if it subsequently turns out that a permanent right no longer exists.
At this stage of the auction date, creditors have the last opportunity to register their claims in good faith, before the judicial officer asks to submit bids.
Bidding time
The minimum time in which bids can be submitted during the auction (bidding time or bidding time) is 30 minutes. In the past, interested parties had at least one hour to submit bids (“bidding hour” or “bidding hour”). There is no maximum bidding time; the auction lasts until the senior judge announces the end of the auction. As a rule, this happens if no further bids are submitted after the last bid has been called three times.
In the appointment, the bidder names a specific bid, i.e. the amount he wants to pay. The bid on the property auction date only refers to the cash bid, i.e. the amount that is paid in cash by the prospective bidder. Each prospective bidder must add the remaining rights (see lowest bid ) to this cash bid in order to receive the actual price he is bidding .
The highest bid submitted in the appointment is called the highest bid.
safety
Immediately after submitting the bid, the creditor or another person entitled to do so (e.g. the debtor) can demand security of usually 10% of the market value from each bidder, but at least equal to the costs of the procedure. In special cases ( Section 68 ZVG), increased security may be required (e.g. if the debtor offers). The security can be provided by a confirmed Bundesbank check issued no earlier than the third working day before the auction date, a crossed check issued no earlier than the third working day prior to the auction date, which is issued by an approved credit institution , the guarantee of such a credit institution or prior transfer to a Account of the court treasury ( § 69 ZVG). If the security deposit is not provided immediately, the bid will be rejected by the court. If the bidder is not accepted, the security will be returned by the court immediately after the auction date.
Creditors' rights
Any creditor in charge can approve the termination of the proceedings at any time, regardless of the amount of the bid and the procedural situation ( § 30 ZVG). If the termination is approved by the senior creditor, this usually leads to the immediate termination of the proceedings. All bids submitted up to then become ineffective. The approval of subordinated creditors to be hired generally has no effect on the auction date.
In the event of the property owner's bankruptcy, the obligee can also carry out the foreclosure auction of real estate outside of the realization of the bankruptcy estate. According to § 49 InsO , the foreclosure auction from the bankruptcy estate is also possible against the express will of the insolvency administrator . The insolvency administrator only has the option, in the event of a foreclosure auction of a piece of property by the creditors, to apply to the court for the preliminary suspension of the proceedings under simplified conditions.
Proclamation
At the end of the bidding period, the enforcement court asks the parties present whether applications are being made. At this stage, too - up to the announcement of the award - the operating creditors can approve the termination of the proceedings; the debtor can still seek enforcement protection under Section 765a ZPO. An entitled person whose claim is within the 7/10 limit can apply for the bid to be refused if the cash bid, including remaining rights, is below 7/10 of the market value.
Taking into account the applications, the court announces its decision on the award or sets a separate date for this, the so-called suspension of the award . In the latter case, the highest bidder remains bound by his bid. However, since the state of the auction object can change to his disadvantage during this time, he may be subject to a suspension of the bid. U. contradict. For constitutional reasons, the enforcement court must avoid squandering. If the highest bid is below approx. 3/10 of the market value, the enforcement court will therefore usually set an award date in order to give the debtor who is not present the opportunity to file enforcement protection applications.
Notice of approval or refusal of the award the enforcement court decides through decision . The highest bidder to whom the contract has been awarded is called the buyer. There is no surcharge in the following cases, among others:
No bid
If no effective bid has been submitted during the auction, the court will discontinue the proceedings ex officio ( Section 77 ZVG). The operating creditors have the option of requesting the continuation of the proceedings.
Too low a bid
If the highest bid is below half of the market value (5/10) on an auction date in which the 5 / 10-7 / 10 value limits apply (i.e. at least in the first auction date), the knockdown according to Section 85a (1) ZVG is To fail officially. In such a case, a surcharge is excluded. If a correspondingly too low bid has been submitted, this limit will no longer apply in further dates; d. In other words, a knockdown can theoretically also be made below the 5/10 value limit in later auction dates.
If the highest bid is at least half, but less than 7/10 of the market value in an auction date in which the 5 / 10-7 / 10 value limits apply (i.e. at least in the first auction date), the knockdown can be made on a corresponding application Be denied by the creditor ( Section 74a ). Under certain circumstances, a subordinate creditor or the debtor can also make this request. A common misconception is that the bid fails below 7/10, and that the bid must be awarded if the highest bid exceeds 7/10 of the market value . However, neither is the case. In fact, with every highest bid, the operating creditor has the option of preventing a knockdown, e.g. B. always by application for temporary suspension. The 7/10 limit therefore only has an influence on which creditors have the option or, in relation to the creditor in charge, which methods are available to him for a possibly desired prevention of surcharges. Likewise, although the 7/10 value limit still exists, the operating obligee can have the bid accepted with a highest bid between 5/10 and 7/10 of the market value if the debtor and possible other creditors do not submit any other applications.
If use is made of a refusal of the surcharge due to the 5/10 or 7/10 limit, these no longer apply in later dates. In this case, subordinated creditors have no way of preventing a surcharge. The operating creditor can then only prevent the award of the contract by applying for (temporary) suspension, whereby the third time this method is used, the procedure is completely terminated, which is usually associated with cost losses for the operating creditor. Even if the highest bid is less than 5/10 of the market value, the court will no longer officially refuse the bid. However, if no bid was submitted at all, the value limits will also apply in subsequent dates. A widespread strategy both on the part of some creditors and those interested in bidders can therefore be to "destroy" the value limits by deliberately submitting a bid that is too low. From the point of view of the prospective bidder, this opens up the possibility of winning the bid at a later date for less than 5/10 of the market value. From the point of view of the operating creditor, subordinated creditors are thus deprived of the opportunity to prevent the award of the bid because the 7/10 value limit has not been reached.
Hiring permit
The cessation of proceedings by the creditor with the highest ranking before the award of the contract is announced usually also leads to the refusal of the contract. The obligee has the possibility to request the continuation of the proceedings. In the event of a further auction date, any 5/10 or 7/10 limits that still exist will continue to apply (so-called additional 1st date).
Transfer of risk, liability and benefit
The risk of loss of the accessories and the other items (equipment, machines, etc.) auctioned at the same time is transferred to the highest bidder at the end of the auction. At this point in time, he is not yet the owner of the property due to the lack of an award.
The risk of destruction of the property along with the essential components (building, etc.) passes to the purchaser exactly to the minute when the bid is accepted.
All burdens, including unknown ones, as well as liability are transferred to the buyer with the award. He enters into existing insurance contracts ( § 56 , § 60 , § 114 VVG ).
The purchaser is entitled to use and fruiting from the bid.
Effect of the award decision
If the bid is awarded, the purchaser is the owner of the property from the time the award decision is announced. This is an exception to the principle that a transfer of ownership requires a land register entry.
The award decision is an enforcement order for the buyer to enforce his right to take possession. The foreclosure on eviction and surrender against the owner of the property can be operated before the legal force . For this purpose, the local court issues an enforceable copy of the award decision upon request. Then the enforcement takes place at the request of the buyer by the bailiff .
After the award of the contract
If the contract is awarded, the Rechtspfleger determines a distribution date. In this, the auction proceeds are allocated to the creditors according to a legally prescribed ranking. This order of priority is usually determined by the entries in the land register. Any surpluses will be paid out to the debtor.
By this date at the latest, the purchaser must pay the highest bid plus interest of 4% annually for the period from the knockdown to the distribution date to the court account. The security already deposited is taken into account.
The distribution date takes place around four to twelve weeks after the award of the contract. On this date, all those involved in the process are invited and the calculated interest is announced. In practice, the court often points out that it is actually not necessary to appear.
The land registry will then correct the land register at the request of the auction court. This means that the new owner is registered and - depending on the circumstances - old entries are deleted. The court asks the land registry when the award decision is final, the division plan has been implemented and the payment of the property transfer tax has been proven by a clearance certificate from the tax office .
See also
literature
- Kurt Stöber: Foreclosure against immovable property. ZVG manual . 7th edition. C. H. Beck'sche Verlagsbuchhandlung, Munich 1999, ISBN 3-406-45730-4 .
- Kurt Stöber: Stöber foreclosure law comment. 19th edition, Beck, Munich 2009.
- Karl-Alfred Storz: Practice of foreclosure proceedings. Guide for creditors, debtors, and senior judges . 10th edition. C. H. Beck, Munich 2007, ISBN 978-3-406-55362-2 .
- Rayner Jankowski: Foreclosure chess manual for debtors . 2nd Edition. Rhombos, Berlin 2007, ISBN 978-3-938807-62-0 .
- Rayner Jankowski: Foreclosure Auction 24 - Real Estate - Ships - Aircraft. Handbook for bidders . 3. Edition. Rhombos, Berlin 2007, ISBN 978-3-938807-61-3 .
- Klaus Bernhard Gablenz : Foreclosed Real Estate Auction - 99 questions and answers . 2nd Edition. Verlag Bauwesen, Berlin 2006, ISBN 978-3-345-00704-0 .
- Fabian Hasselblatt: foreclosure in Beck's book of forms. Editors Fabian Hasselblatt and Werner Sternal, C. H. Beck, Munich 2008, ISBN 978-3-406-559129 , pp. 793-902.
Web links
- Foreclosure Act and Foreclosure on the Website Laws on the Internet .
Individual evidence
- ↑ Basic and systematic overviews are provided by: Walther Gerhardt: Basics and problems of foreclosure auction. Legal worksheets 1981, pp. 12-20.
- ↑ Rayner Jankowski: Foreclosure Auction 24 , 3rd Edition, pp. 23-24.
- ↑ BGH, decision of October 16, 2008, Az. IX ZB 77/08 and decision of December 18, 2008, Az. V ZB 57/08 .
- ↑ Steiner / Hagemann: ZVG, 9th edition, § x Rn. 129.
- ^ BGH, decision of June 25, 2004, Az.IXa ZB 267/03, full text .
- ↑ Frank-Michael Goebel: May minor claims be enforced? .
- ↑ BVerfG, decision of September 27, 1978, Az. 1 BvR 361/78, BVerfGE 49, 220 - Foreclosure III
- ↑ Rayner Jankowski: Foreclosure auction 24 , 3rd edition, pp. 15-16.
- ↑ Landessparkasse zu Oldenburg: Page no longer available , search in web archives: Information for interested parties , accessed on October 15, 2015
- ↑ BGH, decision of January 12, 2006, Az.V ZB 147/05 .
- ↑ Brox / Walker : Zwangsvollstreckungsrecht , 6th edition Cologne / Berlin / Bonn / Munich 1999, p. 501 with reference to RG, judgment of February 23, 1917, Az. Rep. III. 387/16, guiding principle = RGZ 89, 426.
- ↑ BGH, decision of November 5, 2004, Az. IXa ZB 27/04 .
- ↑ Rayner Jankowski: Foreclosure Auction 24 , 3rd Edition, pp. 89–91.
- ↑ Rayner Jankowski: Foreclosure auction 24 , 3rd edition, p. 95 ff.
