Auction by order of the court / Housing market

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The auction by order of the court (judicial sale) is execution proceedings, which are subject to the regulations of the judicial code (ZPO). The foreclosure proceedings are legally regulated in the law over the auction by order of the court and official administration (ZVG).

Purpose

The auction by order of the court is the penetration of a requirement with national instruments of power. The creditor has the possibilities of executing because of a pecuniary claim into the immovable fortune and of satisfying its requirement thus. Immovable fortune are properties and their superstructures, residential property as well as property-same rights such as building property and hereditary building law. Airplanes and ships are treated just like immovable articles, as far as they are registered into a register. Also for their utilization special regulations apply.

The request for arrangement of the auction by order of the court can come both because of a material requirement, for example from a land charge or a mortgage, and because of a personal (payment) requirement. Economically meaningfully often however only the auction from a land charge or a mortgage is, ideally from the first-rate load with existing land register loads.

A special form of the auction by order of the court is the public sale for division for the abolition of the community.

The auction by order of the court leads - in contrast to the official administration, which aims at the yield of a property - to an utilization of the real estate.

Competence

The procedure is accomplished with the district court as enforcement court. This is called material competence. The district court is locally responsible, in whose district the real estate lies. Pretty often however the competence is concentrated with a district court for the districts of several district courts. Functionally ("personnel") the right male nurse is responsible.

Procedure

Request

The auction by order of the court in the way of the execution must be requested by the creditor. The right male nurse examines whether the request is normal and the formal conditions for the arrangement of the auction by order of the court are present. The conditions for this are the collecting main of a Vollstreckungstitels, the normal order of enforcement as well as the feed of the Vollstreckungstitels. The resolution over the arrangement of the procedure applies in favor of the creditor as seizure of property. In the land register in department II it is noted that the auction by order of the court is arranged.

The debtor has the possibility of requesting in accordance with "§ 30 A ZVG the attitude of the auction by order of the court. The request must be placed within two weeks starting from feed of the arrangement and/or entry resolution. This request has chance for success, if the debtor can prove that he can adjust the demand of the creditor within six months. In this case the auction by order of the court is stopped for maximally six months. The attitude of the auction by order of the court can make the court dependent on editions.

Also the creditor has the possibility of letting the auction by order of the court adjust in accordance with "§ 30 ZVG meanwhile. This grant can at any time take place in the procedure, in order to lead negotiations out of court with the debtor or for procedure-tactical reasons, in order not to e.g. let the creditor a not genehmes highest offer give in an auction procedure the addition. The creditor can grant the provisional attitude only twice. The third attitude grant is considered as cancelling of the request to order a judical sale and leads to the abolition of the procedure.

Before the auction day

The right male nurse can estimate the market value of the real estate after own discretion. However an expert is usually assigned the production of a market value appraisal. In principle however also an already existing appraisal can serve as basis for the market value determination.

This market value appraisal is conveyed then the procedure-taken part and/or the determined value of the real estate to the statement admits given.

After hearing of the involved ones on the basis of this appraisal the market value is determined by resolution. This resolution can be contested by all involved ones with the complaint.

After market value appointment the auction day is determined. Usually months offense between arrangement of the auction by order of the court up to the determination of the auction day 9 to 12 months, regionally also up to 24. The date made by notice in the district court and publication in the Official Journal admits. Additionally take place usually also the publication in a local daily paper and ever more frequently in the Internet.

Auction day

In the auction day the "smallest requirement" is set up. It contains those because of priority land register entry exists lasting rights and without part which can be paid, this is at least the costs of the auction procedure.

The minimum time, in which in the auction day requirements can be delivered (offering time), amount to 30 minutes. In former times prospective customers had at least one hour time to deliver requirements ("offering hour").

The procedure operating creditors or another in addition person entitled (for example the debtor), can require of each Bieter security at a value of 10% of the market value. This security is often bar carried out. It can in addition in addition, a cheque confirmed by the Federal Bank, a crossed cheque, which is issued by Kreditinstitut certified in addition, or the endorsement explanation of such credit institute to be used.

If the best requirement (highest offer), delivered in the date, lies below 7/10 of the market value, the addition must be malfunctioned, if this requests in addition a person entitled. If the highest offer lies below half of the market value, the addition is to be malfunctioned officially. In both cases a new auction day is to be determined immediately, in which these borders do not apply any longer. If in the auction day no requirement is delivered or because of an attitude adjustment of the creditor the addition is malfunctioned, the value borders remain existing also in the subsequent date. If two dates without requirements take place, the procedure is to be waived.

The operating creditor can at any time, independently of the height of the requirement, which grant attitude of the procedure. That leads then usually likewise to malfunctioning the addition.

On the distribution or malfunctioning the addition the enforcement court decides by resolution.

After the auction day

If the addition is given, the right male nurse determines a distribution date. Assigned in this will the proceeds of the auction after a legally given order of rank the creditors.

With the distribution of the addition the property at property turns into first ago or hereditarybuilding law on. The therefore necessary correction of the land register makes the land register office on request of the auction court, after those was purchase of land-expensively paid.