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Übersetzung durch Karen Guida

Translation provided by Karen Guida

Stand: Die Übersetzung berücksichtigt die Änderung(en) des Gesetzes durch Artikel 9 des Gesetzes vom 24.5.2016 (BGBl. I S. 1217)

Version information: The translation includes the amendment(s) to the Act by Article 9 of the Act of 24.5.2016 (Federal Law Gazette I p. 1217)

Zur Nutzung dieser Übersetzung lesen Sie bitte den Hinweis unter "Translations".

For conditions governing use of this translation, please see the information provided under "Translations".


Act on Enforced Auction and Receivership

(Gesetz über die Zwangsversteigerung und die Zwangsverwaltung)

Full citation:  Act on Enforced Auction and Receivership, as last amended by Article 9 of the Act of 24 May 2016 (Federal Law Gazette I p. 1217)

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Part 1
Enforced auction and receivership of plots of real estate through compulsory enforcement

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Title 1
General provisions

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Section 1

(1) As to the enforced auction and the receivership of a plot of real estate, that Local Court shall have jurisdiction as the court responsible for execution in the district of which the plot of real estate is situated.

(2) The Land governments shall be authorised to allocate matters concerning enforced auction and receivership to one Local Court for the districts of several Local Courts by statutory instrument to the extent the consolidation is necessary for material furtherance and expedited conduct of the proceedings. The Land governments may delegate this authorisation by statutory instrument to the Land justice administration departments.

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Section 2

(1) If the plot of real estate is situated in the districts of several Local Courts or if it is uncertain which court has jurisdiction in respect of the boundaries of the districts, the next higher court shall designate one of the Local Courts as the court responsible for execution; section 36 subsections (2) and (3) and section 37 of the Code of Civil Procedure (Zivilprozessordnung; ZPO) shall apply mutatis mutandis.

(2) The same order may be issued when the enforced auction or the receivership of several plots of real estate is admissible in the same proceeding and the plots of real estate are situated in the districts of different Local Courts. The court designated as the court responsible for execution shall notify the remaining courts of such designation.

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Section 3

Service shall be effected ex officio. This may take place by way of registered mail with acknowledgement of receipt. The acknowledgement of receipt shall be sufficient as verification of service.

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Section 4

If the intended recipient of the service does not reside at either the location or in the district of the court responsible for execution, service may be effected by service by mailing as long as the appointment of an attorney of record or an authorised recipient who resides there has not been notified to the court. "Registered mail" shall be stated on the documents mailed.

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Section 5

The designation of an authorised recipient of service with the land registry shall also be applicable in the proceedings before the court responsible for execution to the extent this information is known to it.

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Section 6

(1) If the place of residence of the intended recipient of the service and the place of residence of his authorised recipient of service are unknown to the court responsible for execution or if the prerequisites are met for service by publication for other reasons (section 185 of the Code of Civil Procedure), the court shall designate a substitute recipient of service for the intended recipient of the service.

(2) The same shall apply in the event of service by mailing if the documents mailed are returned. The returned mail shall be delivered to the substitute recipient of service.

(3) In lieu of the designation of a substitute it is sufficient if as to persons who do not have capacity to sue and be sued service is ordered to be effected on the guardianship authorities and as to a legal person or organisation that has capacity to sue and be sued on the supervisory authorities.

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Section 7

(1) Service shall be effected on the substitute recipient of service as long as the intended recipient of the service has not been determined.

(2) The substitute recipient of service is under an obligation to determine and inform the intended recipient. He may request compensation for his work and reimbursement of his expenses. The court responsible for execution shall decide on the compensation and reimbursement of expenses.

(3) The creditor shall be liable for the reimbursement of expenses insofar as the substitute recipient of service cannot request reimbursement from the intended recipient; the expenses to be borne by the creditor are part of the costs of the legal proceeding the goal of which is satisfaction from the plot of real estate.

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Section 8

The provisions in sections 4 through 7 shall not be applicable to service on the debtor of the court order by way of which compulsory enforcement was ordered or the joinder of a creditor was admitted.

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Section 9

In addition to the creditor and debtor the following shall be included as parties involved in the proceedings:

1.  those persons as to whom at the time of entry of the notice of enforcement a right in the land register has been entered or has been secured by entry;

2.  those persons who have a right that is contrary to the compulsory enforcement, a right in the plot of real estate or in a right encumbering the plot of real estate, a claim with a right to satisfaction from the plot of real estate, or a rental or lease right based upon which the plot of real estate has been handed over to them, who have registered with the court responsible for execution and upon request of the court or a party credibly demonstrate such right.

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Section 10

(1) A right to satisfaction from the plot of real estate shall be granted pursuant to the following order of rank and in the case of equal rank, in proportion to their amounts:

1.  the claim of a creditor pursuing the receivership of a plot of real estate for reimbursement of his outlays for maintenance or necessary improvement of the plot of real estate, in the case of an enforced auction, however, only when the administration continues until the acceptance of the highest bid and the outlays cannot be reimbursed from the usufructs of the real estate;

1a.  in the case of an enforced auction where insolvency proceedings concerning the debtor's assets have been opened, the claims for reimbursement of costs for establishing the movable objects encompassed by the auction that are part of the insolvency estate; these costs shall only be charged when an insolvency administrator has been designated and shall be fixed as a lump sum of four percent of the value established in accordance with section 74a subsection (5) sentence 2;

2.  upon enforcement against residential property, the claims arising therefrom for payment of amounts for the charges and costs of the joint property or the separate property that are owed pursuant to section 16 subsection (2) and section 28 subsections (2) and (5) of the Residential Property Act (Wohnungseigentumsgesetz, WEG) including advance payments, reserves, and the recourse claims of individual property owners. The preferential right encompasses both current amounts and amounts in arrears from the year of the seizure and the past two years. The preferential right including all ancillary payments is limited to amounts not larger than five percent of the value established in accordance with section 74a subsection (5). Registration shall be made jointly by the residential property owners. The recourse claims of individual residential property owners shall be registered by such persons;

3.  claims for the payment of public charges on the plot of real estate based upon amounts in arrears from the past four years; periodic payments, in particular real estate taxes, interest, surcharges, or payments on annuity land charges, as well as amounts to be paid toward the gradual repayment of a debt as a surcharge on the interest enjoy this preferential right only in respect of current amounts and as to arrears from the past two years. Public charges on the plot of real estate, regardless of whether they relate to federal or Land law, shall have equal rank among one another. The provisions of section 112 subsection (1) and sections 113 and 116 of the Equalisation of Burdens Act (Gesetz über den Lastenausgleich; LAG) of 14 August 1952 (Federal Law Gazette I page 446) shall remain unaffected;

4.  claims arising from rights in the plot of real estate to the extent they are not ineffective vis-à-vis the creditor as a result of the seizure, including claims for amounts to be paid toward the gradual repayment of a debt as a surcharge on interest; claims for periodic payments, in particular interest, surcharges, administrative costs, or payments on annuity land charges enjoy the preferential right of this class only based upon current amounts and amounts in arrears arising during the past two years;

5.  the creditor's claim to the extent it cannot be satisfied in one of the previous classes;

6.  fourth class claims to the extent they are ineffective vis-à-vis the creditor as a result of the seizure;

7.  third class claims based upon older arrears;

8.  fourth class claims based upon older arrears;

(2) There is also a right to satisfaction from the plot of real estate as to the costs of the notice of redemption and the legal proceedings necessary for satisfaction from the plot of real estate.

(3) For the enforcement of the rank pursuant to subsection (1) no. 2 the amounts stated therein must exceed the default amount due pursuant to section 18 subsection (2) no. 2 of the Residential Property Act; if there is an enforceable title, section 30 of the Fiscal Code (Abgabenordnung; AO) shall not be contrary to communication of the assessed value to the creditors set forth in subsection (1) no. 2. A title from which the duty of the debtor to make payment, the type and reference period of the claim, and the due date are recognizable shall be sufficient for the enforcement. To the extent the type and reference period of the claim as well as its due date are not recognizable from the title, they shall be credibly asserted in a suitable manner.

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Section 11

(1) If claims in the same class arising from different rights pursuant to section 10 nos. 4, 6, or 8 are to be satisfied, the determinative order of priority for them shall be that which exists among such rights.

(2) In the fifth class, in the case of more than one claim, the claim as to which the seizure was effective earlier shall have priority.

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Section 12

Claims arising from one and the same right shall have the following rank among one another:

1.  claims as to reimbursement of the costs designated in section 10 subsection (2);

2.  claims as to periodic payments and other ancillary payments;

3.  the principal claim.

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Section 13

(1) Current amounts for periodic payments are the last amount that came due prior to the seizure as well as those amounts that later become due. Older amounts are arrears.

(2) Subsection (1) shall be applicable regardless of whether the claims are related to periodic payments under public or private law or if they concern federal or Land law or whether the statutory provisions set deadlines that differ from those in section 10 subsection (1) nos. 3 and 4; shorter deadlines than those set forth in section 10 subsection (1) nos. 3 and 4 shall always be calculated retrospectively from the last due date prior to the seizure.

(3) If there was no due date within the past two years, the time of the seizure shall be determinative.

(4) If there has been more than one seizure, the first in time shall be determinative. In the case of an enforced auction, when receivership had taken place up until the seizure, the seizure effectuated for this one shall be deemed the first.

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Section 14

Claims for unspecified amounts shall be deemed deferred conditional upon the establishment of the amount.

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Title 2
Enforced auction

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I. Order of auction

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Section 15

The enforced auction of a plot of real estate shall be ordered by the court responsible for execution upon application.

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Section 16

(1) The application shall designate the plot of real estate, the owner, the claim, and the enforceable title.

(2) The documents necessary for the commencement of the compulsory enforcement shall be submitted together with the application.

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Section 17

(1) Enforced auction shall only be ordered when the debtor is entered as the owner of the plot of real estate or when he is an heir of the entered owner.

(2) Evidence of the entry shall be provided in the form of a certificate from the land registry. If both the court responsible for execution and the land registry belong to the same Local Court, reference to the land register shall be sufficient in lieu of a certificate.

(3) The succession shall be credibly demonstrated through documents insofar as it is not evident to the court.

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Section 18

The enforced auction of more than one plot of real estate may occur within the same proceedings if they are pursued based upon a debt against the same debtor or based upon a right existing in each of the plots of real estate or based upon a debt as to which the owners have joint and several liability.

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Section 19

(1) If the court orders the enforced auction it shall concurrently request the land registry to enter this order into the land register.

(2) Subsequent to the entry of the note concerning the enforced auction, the land registry shall issue a certified copy of the page from the land register and the documents to which reference is made in the land register to the court, and it shall specify the authorised recipient of service it has designated and provide the information that it has concerning the place of residence and the address of the registered parties and their representatives. Attachment of the files or the documents shall be sufficient in lieu of issuance of a certified copy of the documents.

(3) The land registry shall inform the court of any entries into the land register subsequent to the note concerning the enforced auction.

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Section 20

(1) The order for enforced auction shall be applicable in favour of the creditor as a seizure of the plot of real estate.

(2) The seizure shall also encompass those objects as to which the mortgage extends concerning the plot of real estate.

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Section 21

(1) The seizure shall only encompass agricultural and forestry products on the plot of real estate as well as the debt for an insurance policy as to such products insofar as the products are still connected with the land or insofar as they are an accessory to the plot of real estate.

(2) The seizure shall not encompass rental and lease debts nor claims arising from a right to periodic payments connected to ownership of the plot of real estate.

(3) The right of a lessee to the enjoyment of fruits and benefits shall not be affected by the seizure.

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Section 22

(1) The seizure of the plot of real estate shall be effective at the time the order of the enforced auction is served on the debtor. It shall also be effective at the time the request for entry of the note concerning the enforced auction is received by the land registry as long as the entry is made shortly thereafter based upon such request.

(2) If the seizure encompasses a debt, upon application of the creditor the court shall prohibit the third party debtor from making payment to the debtor. The seizure shall first be effective in regard to the third party debtor at the time at which it becomes known to him or the prohibition of payment is served on him. The provisions of section 845 of the Code of Civil Procedure shall apply mutatis mutandis.

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Section 23

(1) Seizure shall have the effect of a prohibition of disposal. If the seizure extends to movable property, however, the debtor may dispose of individual pieces within the limits of proper management which shall be effective vis-à-vis the creditor as well.

(2) If, concerning a disposal in violation of the seizure as described in section 135 subsection (2) of the Civil Code (Bürgerliches Gesetzbuch; BGB), there is a question as to whether the person in whose favour the disposal took place knew of the seizure, knowledge of the application for an enforced auction shall also establish knowledge of the seizure. Knowledge of the seizure shall also be deemed as established in consideration of the movable objects seized as soon as the note concerning the enforced auction is entered.

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Section 24

The debtor shall continue with the administration and use of the plot of real estate only within the limits of proper management.

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Section 25

If there is a concern that proper management is endangered from the behaviour of the debtor, upon application of the creditor the court responsible for execution shall order those measures necessary to avert the danger. The court may set aside the measures when the monetary amounts necessary for their continuation have not been paid in advance.

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Section 26

If an enforced auction is ordered based upon a claim arising from a registered right, a sale of the real estate effectuated subsequent to the seizure shall not have any influence over the continuation of the proceedings against the debtor.

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Section 27

(1) If subsequent to an order of enforced auction another application for enforced auction of the plot of real estate is submitted, an order joining the applicant in the proceedings shall be issued instead of an order for an enforced auction. This order shall not be entered into the land register.

(2) The creditor who has been allowed to join the proceedings shall have the same rights as if the enforced auction had been ordered based upon his application.

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II. Termination and temporary stay of proceedings

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Section 28

(1) If the court responsible for execution becomes aware of a right that is evident from the land register which is contrary to the enforced auction or to the continuation of the proceedings, the court shall either immediately terminate the proceedings or shall temporarily stay them setting a deadline within which the creditor must provide proof that the impediment has been removed. In the event of the latter, the proceedings shall be terminated upon the expiration of the deadline if the proof has not been provided.

(2) If the court responsible for execution becomes aware of a restriction on disposal or a defect in enforcement, subsection 1 shall apply mutatis mutandis.

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Section 29

The proceedings shall be terminated when the application for an auction is withdrawn by the creditor.

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Section 30

(1) The proceedings shall be temporarily stayed if the creditor agrees with the stay. A stay may be agreed to more than once. If the proceedings have already been stayed twice based upon agreement by the creditor, another approval of the stay shall have the effect of a withdrawal of the application for the enforced auction.

(2) If the creditor agrees to the striking of the date of the enforced auction this shall have the same effect as approval of the stay.

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Section 30a

(1) The proceedings shall be temporarily stayed for a maximum duration of six months upon application of the debtor if there is a prospect that as a result of the stay the auction will be avoided and if given the personal and financial circumstances of the debtor and the type of debt a stay would be equitable.

(2) The application shall be rejected if the temporary stay is not reasonable for the creditor pursuing compulsory enforcement in light of his financial circumstances, especially if it would give rise to a disproportionate disadvantage to him or if, in consideration of the nature or other circumstances regarding the real estate, it is to be assumed that at a later point in time an auction would result in significantly lower proceeds.

(3) A temporary stay may also be ordered with the condition that it shall cease to be effective if the debtor does not make periodic payments that become due during the stay within two weeks of the due date. If an enforced auction is pursued by a creditor whose mortgage or land charge is within the first seven-tenths of the value of the real estate, the court may refrain from such an order only insofar as this is required for restoration of the regular financial status of the debtor in light of the particular circumstances of the case and it is reasonable in consideration of the creditor's total financial situation, especially his own interest payment obligations.

(4) The court may additionally order that the debtor must make payments on the arrears of periodic payments on specific dates.

(5) Finally, the court may make a temporary stay dependent on other conditions with the proviso that the temporary stay of the proceedings shall cease to be effective in the event such conditions are not fulfilled.

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Section 30b

(1) A temporary stay shall be applied for within a statutory deadline of two weeks. The period shall commence upon service of the ruling by which the debtor is informed of the right to submit an application for a stay, the commencement of the deadline, and the legal consequences of expiration of the deadline without success. The information shall be served concurrently with the court order of the enforced auction when possible.

(2) The decision on the application for a temporary stay of the proceedings shall be made by way of a court order. Prior to the decision, the debtor and the creditor pursuing compulsory enforcement shall be heard; in suitable cases the court may schedule an oral hearing. The debtor and the creditor pursuing compulsory enforcement shall credibly demonstrate their statements upon request of the court.

(3) A complaint subject to a time limit against the decision shall be admissible; the opponent shall be heard prior to the decision.

(4) The date for the auction shall only be announced subsequent to the court order rejecting a temporary stay becoming final and binding.

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Section 30c

If the proceedings were stayed in accordance with section 30a the stay may be renewed one time based upon section 30a unless stay would not be reasonable for the creditor in consideration of the his total financial situation. Section 30b shall apply mutatis mutandis.

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Section 30d

(1) If insolvency proceedings have been opened for the assets of the debtor upon application of the insolvency administrator the enforced auction shall be temporarily stayed if:

1.  in the insolvency proceedings the report meeting in accordance with section 29 subsection (1) no. 1 of the Insolvency Statute (Insolvenzordnung; InsO) has not yet taken place,

2.  the outcome of the report meeting in accordance with section 29 subsection (1) no. 1 of the Insolvency Statute is that the plot of real estate is necessary in the insolvency proceedings for continuation of the business or for preparation of the sale of an operation or another collection of objects,

3.  implementation of an insolvency plan that has been presented would be endangered by the auction, or

4.  the auction would make reasonable disposition of the insolvency estate significantly more difficult in some other manner.

The application shall be rejected if the temporary stay would be unreasonable for the creditor in light of his financial circumstances.

(2) If the debtor has presented an insolvency plan and if the plan has not been rejected pursuant to section 231 of the Insolvency Statute, the enforced auction shall be temporarily stayed upon application of the debtor in accordance with the prerequisites in subsection (1) sentence 1 no. 3 sentence 2.

(3) Section 30b subsections (2) through (4) shall apply mutatis mutandis with the proviso that the insolvency administrator shall take the place of the debtor when he has submitted the application and that the enforced auction shall be stayed when the prerequisites for a stay have been credibly demonstrated.

(4) If a provisional administrator has been appointed prior to the opening of the insolvency proceedings upon his application the enforced auction shall be temporarily stayed when it has been credibly demonstrated that the temporary stay is required for the prevention of detrimental changes in the debtor's assets. If a provisional insolvency monitor has been appointed the debtor shall have the right to submit such application.

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Section 30e

(1) The order for the temporary stay shall contain the condition that during the time after the report meeting pursuant to section 29 subsection (1) no. 1 of the Insolvency Statute, the creditor pursuing compulsory enforcement shall be paid the current interest due to him within two weeks of the due date from the insolvency estate. If the auction proceedings had already been temporarily stayed prior to the opening of the insolvency proceedings in accordance with section 30d subsection (4), the payment of interest shall be ordered at the latest from the date three months after the initial temporary stay.

(2) If the real estate is used for the insolvency estate, upon application of the creditor pursuing compulsory enforcement the court shall order the further condition that the creditor shall be compensated for lost value arising as a result of the stay of the auction proceedings through ongoing payments from the insolvency estate.

(3) Subsections 1 and 2 shall not be applicable insofar as based on the amount of the debt and the value and other charges on the real estate it cannot be expected that the creditor will be satisfied by the proceeds of the auction.

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Section 30f

(1) In cases under section 30d subsections (1) through (3) the temporary stay shall be set aside upon the application of the creditor if the prerequisites for the stay are no longer fulfilled, if the conditions pursuant to section 30e have not been complied with, or if the insolvency administrator, in cases under section 30d subsection (2) the debtor, agrees with setting it aside. Further, upon application of the creditor the temporary stay shall be set aside if the insolvency proceedings have ended.

(2) A temporary stay pursuant to section 30d subsection (4) shall be set aside upon the application of the creditor if the application for the opening the insolvency proceedings has been withdrawn or refused. Otherwise subsection (1) sentence 1 shall apply mutatis mutandis.

(3) Prior to a decision by the court the insolvency administrator, in cases under section 30d subsection (2) the debtor, shall be heard. Section 30b subsection (3) shall apply mutatis mutandis.

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Section 31

(1) In the event of a temporary stay the proceedings shall only be continued upon the application of the creditor insofar as there are no other statutory provisions. If such an application is not submitted within six months, the proceedings shall be terminated.

(2) The deadline pursuant to subsection (1) sentence 2 shall commence

a)  in a case under section 30, upon the stay of the proceedings,

b)  in a case under section 30a, up until the time when the stay was ordered,

c)  in a case under section 30f subsection (1), at the conclusion of the insolvency proceedings, and in a case under section 30f subsection (2), upon the withdrawal or rejection of the application for the opening of the insolvency proceedings,

d)  if the stay was ordered by the court hearing the case, upon the rescission of the order or upon some other conclusion as to the stay.

(3) The court responsible for execution shall instruct the creditor about the commencement of the time period together with information about the legal consequences of expiration of the deadline without success; the deadline shall commence only after the instruction about the legal consequences of expiration of the deadline without success has been served on the creditor.

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Section 32

The order by which the proceedings are terminated or temporarily stayed shall be served on the debtor, the creditor, and, if the order was applied for by a third party, on such third party as well.

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Section 33

Upon conclusion of the auction, if there grounds for termination, for temporary stay of the proceedings, or for striking the date of the auction, there shall only be a decision in the event of a rejection of the highest bid.

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Section 34

In the event of a termination of the proceedings, a request shall be made for the land registry to delete the note concerning the enforced auction.

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III. Scheduling the date for the auction

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Section 35

The auction shall be conducted by the court responsible for execution.

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Section 36

(1) The date of the auction shall be scheduled only after the seizure as to the real estate has occurred and after receipt of information from the land registry.

(2) The period between scheduling the date of the auction and the date shall not exceed six months unless there are compelling reasons otherwise. If the proceedings were temporarily stayed, this deadline shall not exceed two months; however, it must be at least one month.

(3) At the discretion of the court the auction may be held at the location of the court or at another location within the judicial district.

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Section 37

The notice scheduling the date of the auction shall contain:

1.  the identification of the real estate;

2.  the time and place of the auction;

3.  information that the auction is effected as part of compulsory enforcement;

4.  the demand that rights, insofar as they were not evident at the time of entry of the note concerning the enforced auction into the land register, be registered at the latest at the auction prior to the call for the submission of bids and, if the creditor objects, that they be credibly demonstrated, failing which the rights will not be considered in establishing the lowest bid and upon the distribution of the proceeds of the auction shall be ranked below the creditor's claim and the remaining rights;

5.  the demand to those who have a right that is contrary to the auction to cause the termination or temporary stay of the proceedings prior to the acceptance of highest bid to cause the termination or stay of the proceedings, failing which as to such right the proceeds of the auction shall take the place of the auctioned object.

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Section 38

(1) The notice scheduling the date of the auction shall contain information as to the land register page and the size and market value of the real estate. If the acceptance of the highest bid was rejected at a previous auction based upon reasons set forth in section 74a subsection (1) or in section 85a subsection (1), these facts shall also be provided in the notice scheduling the date of the auction.

(2) The court may publicly announce valuation reports and appraisals in an electronic information and communications system intended for the court.

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Section 39

(1) The notice scheduling the date of the auction shall be publicly announced through a one-time listing in a publication of the court intended therefor or in an electronic information and communications system intended for the court.

(2) If the real estate is low in value, the court may order that the listing or publication pursuant to subsection (1) shall not be made; in this case announcement shall take place by posting the notice scheduling the date of the auction in the location for official announcements specified therefor in the community in which the real estate is located.

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Section 40

(1) The notice scheduling the date of the auction shall be posted on the court public notice board. If the court has been appointed as the court responsible for execution pursuant to section 2 subsection (2), posting shall also be made at the other courts. If the date is publicly announced pursuant to section 39 subsection (1) by publication in an electronic information and communications system intended for the court, posting on the court public notice board shall not be required.

(2) The court is authorised to initiate other and repeated publications; in the exercise of this authorisation the court shall take particular consideration of local practice.

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Section 41

(1) The notice scheduling the date of the auction shall be served on the parties.

(2) During the fourth week prior to the auction, the parties shall be informed of the applicant and the claims based upon which the auction shall take place.

(3) Those persons who still must credibly demonstrate their registered right shall also qualify as parties.

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Section 42

(1) Every person shall be allowed to inspect the information from the land registry and the registrations that have been made.

(2) The same shall apply to other documentation concerning the real estate submitted by a party, particularly appraisals.

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Section 43

(1) The date of the auction shall be stricken and a new date determined if the notice scheduling the date of the auction was not announced six weeks prior to such date. If the proceedings were temporarily stayed, it shall be sufficient if the announcement of the notice scheduling the date of the auction took place two weeks prior to the auction.

(2) The same shall apply if four weeks prior to the date of the auction an order based upon which the auction could take place was not served on the debtor and the notice scheduling the date of the auction was not served on all parties who were known to the court at the time the date of the auction was scheduled, unless the person in consideration of whom the deadline was not met has agreed to the proceeding.

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IV. Lowest bid. Auction conditions

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Section 44

(1) At the auction only those bids shall be accepted that would cover the priority rights of the creditor's claim as well as the costs of the proceedings to be paid from the auction proceeds (lowest bid).

(2) If the proceedings are being conducted based upon several claims of different rank, the higher-ranking claim shall only be used for establishing the lowest bid if the order issued pertaining to such claim was served upon the debtor four weeks prior to the date of the auction.

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Section 45

(1) In establishing the lowest bid a right shall only be taken into consideration to the extent it was evident from the land register at the time of the entry of the note concerning the enforced auction according to the contents of the land register, otherwise only if it was timely registered and, if objected to by the creditor, credibly demonstrated.

(2) As to periodic payments to be paid according to the contents of the land register, current amounts are not required to be registered nor past due amounts to be credibly demonstrated.

(3) Claims by residential property owners pursuant to section 10 subsection (1) no. 2 shall be credibly demonstrated upon registration by way of a corresponding title, copies of resolutions of the residential property owners including the attachments thereto, or in another suitable manner. These submissions must show the payment obligation, the nature and reference period of the claim, and its maturity date.

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Section 46

As to periodic payments that do not consist of money, the court shall establish a monetary amount, even when such has not been registered.

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Section 47

Current amounts for regular periodic payments shall be covered during the time period ending two weeks after the date of the auction. Non-regular periodic payments shall be taken into consideration together with amounts that are to be paid prior to the expiry of this deadline.

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Section 48

Conditional rights shall be taken into consideration as unconditional rights; rights that are secured by the entry of an objection or a priority notice shall be taken into consideration as entered rights.

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Section 49

(1) The portion of the lowest bid that is designated to cover the costs as well as the claims set forth in section 10 nos. 1 through 3 and in section 12 nos. 1 and 2, likewise for the amount of the highest bid exceeding the lowest bid, shall be adjusted by the purchaser prior to the date of distribution of the proceeds (cash bid).

(2) Interest shall accrue on the cash bid from the time of the acceptance of highest bid.

(3) The cash bid shall be paid on time into a bank account of the court cashier's office by way of a transfer or deposit so that the amount is credited to the court cashier's office prior to the date of distribution of the proceeds and there is proof thereof on that date.

(4) The purchaser shall be relieved of his obligations by deposit if the deposit and the exclusion of withdrawal are evidenced at the hearing regarding the distribution of the proceeds.

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Section 50

(1) To the extent a non-existent mortgage, land charge, or annuity land charge was taken into consideration in the determination of the lowest bid, the purchaser, in addition to the cash bid, shall also pay the amount of the principal considered. In regard to bearing interest, the interest rate, the time of payment, a notice of redemption, and the place of payment the provisions adopted as to the recognised right shall be determinative.

(2) The same shall apply:

1.  if the right is conditional and the condition precedent does not occur or the condition subsequent occurs;

2.  if the right still exists as to a different plot of real estate and as to the real estate sold by auction the right is extinguished pursuant to the specific provisions concerning the general mortgage.

(3) If at the same time the purchaser is personally liable in circumstances as described in subsection (2) no. 2, an increase in the amount payable is precluded to the extent the purchaser has not been enriched.

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Section 51

(1) If the right to be taken into consideration is not a mortgage, land charge, or annuity land charge, the provisions of section 50 shall apply mutatis mutandis. The purchaser shall pay that amount by which the value of the real estate increased rather than the principal three months after the notice of redemption and shall pay interest thereupon from the acceptance of highest bid.

(2) The amount shall be determined by the court upon the establishment of the lowest bid.

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Section 52

(1) A right shall remain effective insofar as it was taken into consideration at the time of the establishment of the lowest bid and is not to be covered by payment. Otherwise the rights are extinguished.

(2) The right to payments on annuity land charges as defined in sections 912 through 917 of the Civil Code shall also remain effective when it was not taken into consideration in the determination of the lowest bid. The first sentence shall apply mutatis mutandis to

a)  the interest on heritable building rights, if pursuant to section 9 subsection (3) of the Act on Heritable Building Rights (Erbbaurechtsgesetz; ErbbauRG) the continued effectiveness of the interest on heritable building rights is agreed as part of the substance of the realty charge;

b)  easements and restricted personal easements that encumber the plot of real estate as a whole, if enforcement is against residential property with priority in accordance with section 10 subsection (1) no. 2 and there is no other right in priority class 4 ranked above it based upon which the auction may take place.

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Section 53

(1) If, in the case of a mortgage that remains effective, the debtor at the same time is individually liable, the purchaser shall assume the debt in the amount of the mortgage; the provisions in section 416 of the Civil Code shall apply mutatis mutandis with the proviso that the debtor is to be regarded as the seller within the meaning of this provision.

(2) The same shall apply when, in the case of a land charge or an annuity land charge that remains effective, the debtor at the same time is individually liable, insofar as at the latest on the day of the auction prior to the call for the submission of bids the debts against him were registered and the amount and basis were provided and upon request of the court or a party, were credibly demonstrated.

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Section 54

(1) The notice of redemption of a mortgage, a land charge, or an annuity land charge declared by the creditor to the owner or by the owner to the creditor shall only be effective as to the purchaser when it occurred at the latest on the day of the auction prior to the call for the submission of bids and was registered at the court.

(2) The same shall apply to a circumstance not apparent from the land register as a result of which the claim may be asserted prior to that time.

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Section 55

(1) The auction of the plot of real estate shall encompass all objects as to which the seizure is still effective.

(2) The auction shall also encompass all accessories that are in the possession of the debtor or a new owner when they belong to a third party unless such party has asserted his right in accordance with section 37 no. 5.

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Section 56

The risk of accidental loss passes to the purchaser at the time of the acceptance of highest bid as to the plot of real estate and at the conclusion of the auction as to the remaining objects. From the time of the acceptance of highest bid onward the purchaser is entitled to the usufructs and bears the charges. There shall be no warranty claim.

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Section 57

If a lessee or usufructary lessee has been permitted to use the plot of real estate, the provisions in sections 566, 566a, 566b subsection (1), 566c, and 566d of the Civil Code shall apply mutatis mutandis in accordance with sections 57a and 57b.

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Section 57a

The purchaser shall be entitled to terminate the rental or leasing relationship within the statutory notice period. Termination shall not be allowed if it does occur at the first time that it is permissible.

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Section 57b

(1) Insofar as pursuant to sections 566b subsection (1), 566c, and 566d of the Civil Code the passing of ownership is taken into account concerning the effectiveness of dispositions and legal transactions regarding rent or lease payments, instead of this the seizure of the plot of real property shall be determinative. If the order for the enforced auction is served on the lessee or usufructary lessee, upon service the seizure shall be deemed to be known; service shall be effected upon application of the creditor on those persons designated by him. The order shall include instructions pertaining to the significance of the seizure for the lessee or usufructary lessee. Upon the application of the creditor the court shall cause an investigation to be made to identify the lessees and usufructary lessees; to this end it may direct a bailiff or another civil servant or request a communication from the competent local authority as to the lessees and usufructary lessees known to it.

(2) Seizure for the purpose of the enforced auction shall have the same effect as seizure for the purpose of receivership if it has continued until the acceptance of the highest bid. If the lessee or usufructary lessee has been served with the order prohibiting him from making payments to the debtor, this service shall be deemed to establish knowledge of the seizure by such lessee or usufructary lessee.

(3) These provisions shall not be applicable to dispositions or legal transactions by the receiver.

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Section 57c

(repealed)

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Section 57d

(repealed)

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Section 58

The costs of the court order by way of which the highest bid is accepted, shall be borne by the purchaser.

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Section 59

(1) Each party may request establishment of the lowest bid in deviation from the statutory provisions and the auction terms at the latest on the day of the auction prior to the call for the submission of bids. The application may be withdrawn at the latest at the time set forth in the first sentence. If the right of another party will be affected by the deviation, that party's agreement shall be required.

(2) To the extent that it has not been ascertained whether the right will be adversely affected by the deviation, the plot of real estate shall be offered for bid both with and without the requested deviation.

(3) If the continuing existence of a right is to be determined, which would be extinguished pursuant to section 52, it shall not require the agreement of a party with an inferior rank.

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Section 60

-(repealed)

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Section 61

-(repealed)

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Section 62

Prior to the date of the auction the court may allow the parties to discuss the lowest bid and the auction terms and to this end may also set a specific court hearing date.

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Section 63

(1) Each plot of real estate to be auctioned in the same proceeding shall be offered separately. Plots of real estate that are built over with one integrated structure may be offered together.

(2) At the latest on the day of the auction prior to the call for the submission of bids any party may request that in addition to inviting separate bids for each plot of real estate all plots may be offered together (aggregated offer). To the extent that some plots of real estate are encumbered by one and the same right, any party may also request that such plots of real estate be jointly offered (grouped offer). Upon application therefor the court in other cases may also order the aggregated offer of some of the plots of real estate (grouped offer).

(3) If a highest bid is submitted in response to an invitation for a separate bid concerning one of the plots of real estate that is higher than the lowest bid for this plot of real estate, then as to the aggregated offer the lowest bid shall increase by the difference in the amounts. Acceptance of the highest bid shall be issued based upon the aggregated offer only if the highest bid is higher than the total result of the separate bids.

(4) An invitation for a separate bid shall not take place when the parties in attendance whose rights were not to be taken into consideration in the determination of the lowest bid have waived it. This waiver shall be declared at the latest prior to the call for the submission of bids.

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Section 64

(1) If numerous plots of real estate encumbered with a general mortgage having priority above the creditor's claims are auctioned in the same proceedings, upon application the general mortgage shall be taken into consideration in the determination of the lowest bid for the separate plot of real estate only in the partial amount that corresponds to the relationship of the value of the real estate to the value of all of the plots of real estate; the value shall be calculated with a deduction of the charges that have priority above the general mortgage and shall continue in existence. Those entitled to submit an application are the creditor, the owner, and every party who is of the same or of lower rank than the mortgage creditor.

(2) If an application as described in subsection (1) is submitted, up until the close of the proceedings at the auction the mortgage creditor may request that only those rights higher in rank than his claim should be taken into consideration in the determination of the lowest bid as to the plots of real estate; in such a case the plots of real estate shall also be offered with the requested deviation. If subsequent to the offer of the real estate at auction the mortgage creditor, regardless of the request by the court, does not state which offer should be determinative as to the issuance of the acceptance of highest bid, this shall take place on the basis of the lowest bid determined in accordance subsection (1).

(3) These provisions shall apply mutatis mutandis when the plots of real estate are encumbered with one and the same land charge or annuity land charge.

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Section 65

(1) The court may, upon application, order that a debt or a moveable object be excluded from the auction of the real estate and be separately auctioned. Upon application another form of realisation may also be ordered, in particular a representative may be appointed for the collection of a debt or the debt may be transferred to a party with his agreement instead of payment. The provisions in sections 817, 820, and 835 of the Code of Civil Procedure shall apply mutatis mutandis. The proceeds shall be deposited.

(2) A separate auction or other realisation shall only be permissible when the lowest bid has been achieved.

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V. Auction

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Section 66

(1) On the day of the auction after the matter is called the documents related to the plot of real estate, the creditors pursuing the proceedings, their claims, the time of the seizure, the value of the plot of real estate as established by the court, and the registrations made shall be announced, and thereupon the lowest bid and the auction terms shall be established and the established terms read out after hearing those parties present, when necessary with the assistance of an accounting expert, with a description of the individual rights.

(2) Subsequent thereto the court shall inform of the imminent exclusion of further registrations and then announce the call for the submission of bids.

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Section 67

(1) A party whose rights would be adversely affected by the non-fulfilment of the bid may request the payment of a security, however only immediately after the submission of the bid. This request shall also apply to further bids by the same bidder.

(2) If the bidder is entitled to a mortgage, land charge, or annuity land charge covered in whole or in part by the bid, he shall only be required to pay a security upon request of the creditor. This provision shall not apply to bids by the debtor or a new owner.

(3) No security payment may be requested of the federal government, the Deutsche Bundesbank, the Deutsche Genossenschaftbank, the Deutsche Girozentral (Deutsche Kommunalbank), or a Land.

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Section 68

(1) The security shall be paid in the amount of one-tenth of the market value stated in the notice scheduling the date of the auction, otherwise the established market value. If the security pursuant to the first sentence exceeds the cash bid, the amount in excess shall be released. If the security payment is effected by way of a transfer to the account of the court cashier's office, the court shall order disbursement of the amount in excess.

(2) A party whose right remains effective pursuant to section 52 may additionally request payment of a security up to an amount to be adjusted by payment that would cover claims that have a higher rank than his right.

(3) If the debtor or a new owner of the plot of real estate bids, the creditor may additionally request payment of a security up to an amount to be adjusted by payment that would cover his claim.

(4) The increased security payment pursuant to subsections (2) and (3) shall at the latest be made by the decision on the acceptance of the highest bid.

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Section 69

(1) Payment of a security in cash shall be excluded.

(2) Checks guaranteed by the Bundesbank and crossed cheques that were issued no earlier than three business days prior to the date of the auction shall be suitable for payment of the security. This shall only apply when it is issued by a credit institution entitled to perform banking services encompassed by the scope of this statute and payable within Germany. Entitled within the meaning of this provision are credit institutions that are set forth in the list of authorised credit institutions pursuant to Article 3 subsection (7) and Article 10 subsection (2) of Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ EC L 322, p. 30).

(3) A suretyship that is unlimited in duration, unconditional, and guaranteed jointly and severally from a credit institution within the meaning of subsection (2) shall be permissible if the obligation from the suretyship is to be fulfilled within Germany. This shall not apply to bids by the debtor or a new owner.

(4) The security payment may be effected by a transfer to an account of the court cashier's office if the amount is credited to the court cashier's office prior to the date of the auction and evidence thereof is provided at the auction.

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Section 70

(1) The court shall reach an immediate decision concerning the payment of a security.

(2) If the court declares that a security is required, it shall be paid immediately. Payment of the security by way of a transfer to an account of the court cashier's office shall take place prior to the date of the auction. If the payment has not been made, the bid shall be rejected.

(3) If the bid is allowed without the payment of a security and the party that requested the security did not immediately lodge an objection thereto, the request shall be deemed withdrawn.

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Section 71

(1) An ineffective bid shall be rejected.

(2) If the effectiveness of a bid is dependent upon the power of representation of the person who had submitted the bid for the bidder or upon the approval of another or of a public agency, it shall be rejected, unless the power of representation or the approval is evident to the court or is immediately proven by a publicly certified document.

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Section 72

(1) A bid expires if a higher bid is allowed and a party does not immediately object to the allowance of such bid. A higher bid shall be deemed allowed when it is not immediately rejected.

(2) A bid shall also expire when it is rejected and the bidder or a party does not immediately object to such rejection.

(3) The same shall apply when the proceedings are temporarily stayed or the date of the auction is stricken.

(4) A bid shall not expire if a security payment to be made pursuant to section 68 subsections (2) and (3) as to an allowed higher bid has not been paid by the time of the decision on the acceptance of highest bid.

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Section 73

(1) There must be a period of thirty minutes between the call for the submission of bids and the time at which the auction concerning all plots of real estate to be auctioned is closed. The auction must be continued for as long as necessary until despite the court's call no further bid is submitted.

(2) The court shall pronounce the last bid and the close of the auction. The pronouncement of the last bid should take place by way of calling three times.

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Section 74

Upon conclusion of the auction the parties present shall be heard concerning the acceptance of highest bid.

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Section 74a

(1) If the highest bid submitted including the net present value of the rights continuing in effect pursuant to the auction terms is lower than seven-tenths of the value of the real estate, an entitled person whose claim is not covered in whole or in part by the highest bid but foreseeably would have been by a bid in the amount stated, may apply for rejection of the highest bid. The application shall be rejected when the creditor pursuing compulsory enforcement objects thereto and credibly demonstrates that he would be subject to a disproportionate disadvantage from rejection of the highest bid.

(2) The application for rejection of the highest bid may only be submitted up until the conclusion of the proceedings concerning the acceptance of the highest bid; the same shall apply from the declaration of the objection.

(3) If the highest bid is rejected pursuant to subsection (1), a new auction date shall be scheduled ex officio. The time period between the two auction dates should be at least three months insofar as no other circumstances in the particular case require otherwise and shall not exceed six months.

(4) At the subsequent auction, acceptance of the highest bid shall not be rejected for reasons based upon subsection (1) nor for those based upon section 85a subsection (1).

(5) The value of the real estate (current market value) shall be established by the court responsible for execution, when necessary after hearing experts. The value of movable objects that are encompassed by the auction shall be estimated taking into account the overall circumstances. The order concerning the establishment of the value of the real estate shall be appealable by a complaint subject to a time limit. The acceptance of the highest bid or the rejection of the highest bid cannot be appealed based upon the grounds that the value of the real estate was improperly established.

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Section 74b

If the highest bid was submitted by a person entitled to satisfaction from the real estate, section 74a shall not be applicable if the bid including the net present value of the rights continuing in effect pursuant to the auction terms together with the amount of the shortfall for the highest bidder in the distribution of the proceeds is at least seven-tenths of the value of the real estate and the rank of this amount is directly below the last amount that is covered by the bid.

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Section 75

The proceedings shall be stayed if the debtor presents evidence of payment or transfer from a bank or savings bank or a public document that shows that the debtor or a third party who is entitled to satisfy the creditor has paid the amount necessary for satisfaction and to cover the costs to the court cashier's office.

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Section 76

(1) If at the auction concerning several plots of real estate such a high amount is bid as to one or several plots so that the creditor's claim is covered, the proceedings in regard to the remaining plots of real property shall be temporarily stayed; the stay shall not occur if it is contrary to the legitimate interests of the creditor.

(2) If the temporary stay occurs, the creditor may request continuation of the proceedings if he has a legitimate interest therein, especially if he has not been satisfied at the auction. If the creditor does not apply for the continuation prior to the expiry of three months after the date of the auction, the application for the auction shall be deemed withdrawn.

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Section 77

(1) If no bid is submitted or if all bids are expired, the proceedings shall be temporarily stayed.

(2) If the auction is again unsuccessful on the second date, the proceedings shall be terminated. If the prerequisites for an order of receivership of the real estate are fulfilled, upon the application of the creditor the court may order that the proceedings continue as receivership. In such a case, the effects of the seizure that took place for the enforced auction shall continue; the provision in section 155 subsection (1) concerning the costs of the enforced auction, however, shall not be applicable.

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Section 78

Actions during the auction that are relevant to the decision on the acceptance of the highest bid or to the right of a party shall be set forth in the record; if there is a dispute as to whether the acceptance of the highest bid should be issued or as to which bid, the factual circumstances together with the applications made shall be set forth in the record.

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VI. Decision on acceptance of the highest bid

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Section 79

In its decision-making concerning the acceptance of the highest bid the court shall not be bound to any earlier decision taken.

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Section 80

Actions during the auction that are not apparent from the record shall not be considered in the decision on the acceptance of the highest bid.

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Section 81

(1) The acceptance of the highest bid shall be awarded to the one who submitted the highest bid.

(2) If the one who submitted the highest bid has ceded the right in the highest bid to another and that person has accepted the obligation as to the highest bid, then the acceptance of the highest bid shall not be issued to the one who submitted the highest bid, but rather, to such other, if the declarations were submitted at the auction or were subsequently proven through publicly certified documents.

(3) If the one who submitted the highest bid declares at the auction or subsequently in a publicly certified document that he submitted bids for another, acceptance of the highest bid shall be issued in favour of such other if the power of representation of the one who submitted the highest bid or the agreement of the other is either evident to the court or has been proven by way of a publicly certified document.

(4) If the acceptance of the highest bid is issued, the one who submitted the highest bid and the purchaser shall be jointly liable.

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Section 82

In the order by way of which the acceptance of the highest bid is issued, the plot of real estate, the purchaser, the bid, and the auction terms shall be set forth; also, in cases under section 69 subsection (3) the surety together with the amount of his debt and in cases under section 81 subsection (4) the highest bidder, shall be declared to have joint liability.

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Section 83

Acceptance of the highest bid shall be rejected:

1.  if the provision in section 43 subsection (2) or one of the provisions concerning the determination of the lowest bid or the auction terms are violated;

2.  if at the auction of several plots of real estate an invitation for a separate bid or an aggregated offer is not made contrary to the provisions in section 63 subsections (1), (2) sentence 1, or (4);

3.  if in cases under section 64 subsections (2) sentence 1 and subsection (3) the mortgage, land charge, or annuity land charge or the right of a party that is of the same or inferior rank which is higher in priority than the creditor, is not covered by the total amount of the separate bids;

4.  if the registration or demonstration of credibility of a right that occurred subsequent to the call for the submission of bids is rejected without consideration of the provision in section 66 subsection (2);

5.  if the enforced auction or the continuation of the proceedings is contrary to the right of a party;

6.  if the enforced auction or the continuation of the proceedings is impermissible for any other reason;

7.  if one of the provisions in section 43 subsection (1) or section 73 subsection (1) is violated;

8.  if the requested payment of a security pursuant to section 68 subsections (2) and (3) is not made by the time of the decision on the acceptance of the highest bid.

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Section 84

(1) The grounds for rejection set forth in section 83 nos. 1 through 5 shall not preclude issuance of the acceptance of the highest bid if the right of the party would not be adversely affected by the acceptance of the highest bid or if the party agreed to the proceedings.

(2) The agreement shall be evidenced by a publicly certified document.

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Section 85

(1) Acceptance of the highest bid shall be rejected if prior to the close of the proceedings a party whose right would be adversely affected by the acceptance of the highest bid and who is not among those entitled persons as set forth in section 74a subsection (1) applies for the scheduling of a new auction date and concurrently obligates himself to provide reimbursement for the damage arising from the rejection of the highest bid, including the payment of a security at the request of another party. The provisions in section 67 subsection (3) and section 69 shall apply mutatis mutandis. The amount of the security to be paid shall be the adjusted portion of the highest bid until then up to the date of the hearing regarding the distribution of the proceeds.

(2) The new notice scheduling the date of the auction shall also be served on the highest bidder.

(3) At the next auction the previous highest bid with interest from the portion of the highest bid to be adjusted by payment with the addition of those extra costs that are to be deducted from the proceeds of the auction shall be deemed as a bid submitted by the party.

(4) In the continued proceeding, the provisions in subsection (1) shall not be applicable.

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Section 85a

(1) The acceptance of the highest bid shall also be rejected if the highest bid submitted including the net present value of the rights remaining in effect pursuant to the auction terms, is less than half of the value of the real estate.

(2) Section 74a subsections (3) and (5) shall apply mutatis mutandis. At the new auction the acceptance of the highest bid shall not be rejected based on grounds in subsection (1) nor those in section 74a subsection (1).

(3) If the highest bid is submitted by one entitled to satisfaction from the real estate, subsection (1) shall not be applicable if the bid, including the net present value of the rights remaining in effect pursuant to the auction terms together with that amount by which the highest bidder would be satisfied through distribution of the proceeds, is at least half of the value of the real estate.

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Section 86

The final and binding rejection of the acceptance of the highest bid shall have the effect of a temporary stay when the continuation of the proceedings is permissible and in all other cases it shall have the effect of a termination of the proceedings.

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Section 87

(1) The order by way of which the highest bid is accepted or its acceptance is rejected shall be pronounced at the auction or at a hearing the date of which is to be immediately scheduled.

(2) The date for the pronouncement of the decision shall not be scheduled later than one week thereafter. The scheduling of the date shall be pronounced and shall be announced by posting on the court public notice board.

(3) If facts or evidence are subsequently presented, the parties present at the pronouncement of the decision shall be heard regarding this.

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Section 88

The order by way of which the acceptance of the highest bid is issued shall be served on those parties who did not appear at the auctions or at the pronouncement of the decision, the purchaser, in cases under section 69 subsection (3) a surety declared to be jointly liable, and in cases under section 81 subsection (4) the highest bidder. Those person who still must credibly demonstrate a registered right shall also be deemed parties.

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Section 89

The acceptance of the highest bid shall be valid upon pronouncement.

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Section 90

(1) Through the acceptance of the highest bid the purchaser shall become the owner of the plot of real estate insofar as the order has not been rescinded with final and binding effect during the appellate proceedings.

(2) Together with the plot of real estate he also purchases those objects that were encompassed by the auction.

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Section 91

(1) The rights shall be extinguished by the acceptance of the highest bid in accordance with the prerequisite set forth in section 90 subsection (1) except for those that are to remain effective pursuant to the auction terms.

(2) A right in the plot of real estate shall remain, however, if this has been agreed between the entitled person and the purchaser and the declarations were either made at the hearing regarding the distribution of the proceeds or is evidenced by a publicly certified document prior to the request to the land registry for amendment of the land register.

(3) In cases under subsection (2) the portion of the highest bid to be adjusted by payment shall be reduced by that amount that otherwise would be due to the entitled person. Otherwise, the agreement shall have the same effect as satisfaction of the entitled person from the plot of real estate.

(4) The extinguishment of a right owned by one who could request the extinguishment of an existing mortgage, land charge, or annuity land charge pursuant to section 1179a of the Civil Code at the time of such deletion shall not result in the extinguishment of this claim. The claim shall be extinguished when the entitled person is satisfied from the plot of real estate.

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Section 92

(1) If by the acceptance of the highest bid a right is extinguished that is not directed at the payment of principal, the claim for reimbursement of the value from the proceeds of the auction shall be substituted for such right.

(2) Reimbursement for a usufruct, for a restricted personal easement, or for a realty charge unlimited in duration, shall be made by the payment of an annuity in money that corresponds to the annual value of the right. The amount shall be paid for three months in advance. The claim for a payment that has become due shall also remain effective as to the entitled person if the right to the periodic payments on annuity land charges extinguished prior to the expiry of the three months.

(3) As to redeemable rights, the amount of the reimbursement payment shall be determined by the redemption sum.

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Section 93

(1) Compulsory enforcement to vacate and surrender against the possessor of the plot of real estate or an object that was also auctioned shall take place based upon the order through which the acceptance of the highest bid is issued. The compulsory enforcement shall not take place when the possessor is in possession based upon a right that is not extinguished by the acceptance of the highest bid. If, nevertheless, the compulsory enforcement takes place, the possessor may lodge an opposition thereto pursuant to the requirements in section 771 of the Code of Civil Procedure.

(2) The purchaser shall not be obligated to reimburse outlays made prior to the acceptance of the highest bid.

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Section 94

(1) Upon the application of a party who expects satisfaction from the cash bid, the plot of real estate shall be placed under court administration for the account of the purchaser for as long as payment or deposit has not occurred. The application may be submitted at the auction.

(2) The provisions concerning receivership of real estate shall apply mutatis mutandis to the appointment of an administrator as well as to his rights and duties.

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VII. Complaints

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Section 95

A complaint subject to a time limit may be filed against a decision that was made prior to the decision-making concerning the acceptance of the highest bid only to the extent that the decision affects the order for, termination, temporary stay, or continuation of the proceedings.

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Section 96

The provisions of the Code of Civil Procedure shall be applicable to the complaint against a decision concerning the acceptance of the highest bid only insofar as there is no contrary provision in sections 97 through 104.

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Section 97

(1) When the acceptance of the highest bid has been issued a complaint is available to each party, the purchaser, third parties declared to have payment obligations, and in the case of a rejection, the creditor, in both cases also a bidder whose bid is not extinguished, as well as those taking the place of the bidder pursuant to section 81.

(2) In a case under section 9 no. 2, it shall be sufficient if the registration and the demonstration of credibility of the right is submitted to the court hearing the complaint.

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Section 98

The deadline for the complaint against an order by the court responsible for execution in which the acceptance of the highest bid was rejected shall commence with the pronouncement of the order. The same shall apply in the case of issuance of the acceptance of the highest bid for the parties who were present at the auction or at the pronouncement of the decision.

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Section 99

(1) If the court hearing the complaint deems a counterstatement necessary, it shall determine who is to be included as a respondent to the appellant.

(2) If there is more than one complaint they shall be joined.

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Section 100

(1) The complaint may only be based upon a violation of sections 81 and 83 through 85a or that the acceptance of the highest bid was issued under conditions differing from those upon which the auction was based.

(2) Reasons that only affect the rights of another cannot be used to support either the complaint or an application for its rejection.

(3) The grounds for rejection set forth in section 83 nos. 6 and 7 shall be considered by the court hearing the complaint ex officio.

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Section 101

(1) If the complaint is deemed justified, the court hearing the complaint, upon quashing the challenged court order, shall decide on the matter as such.

(2) If an order through which the acceptance of the highest bid was issued is rescinded, but upon a complaint on points of law it is deemed justified, upon rescinding the order of the court hearing the complaint, the complaint filed against the issuance of the acceptance of the highest bid shall be dismissed.

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Section 102

If the court hearing the complaint had rescinded the order through which the acceptance of the highest bid was issued subsequent to the distribution of the proceeds of the auction, a complaint on points of law may also be filed by those who have received proceeds when the court hearing the complaint so allows.

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Section 103

If the challenged order has been rescinded or modified, the decision of the court hearing the complaint shall be served on all parties and those bidders as to whom the acceptance of the highest bid was denied or issued, as well as in cases under section 69 subsection (3) a surety declared to be jointly liable and in cases under section 81 subsections (2) and (3) the highest bidder. If the complaint is rejected, service of the order shall only be effected on the applicant and the included respondent.

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Section 104

The order through which the court hearing the complaint issues the acceptance of the highest bid shall first become effective upon service on the purchaser.

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VIII. Distribution of proceeds

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Section 105

(1) Subsequent to the issuance of the acceptance of the highest bid the court shall schedule a date for the distribution of the proceeds of the auction.

(2) The notice scheduling the date of the distribution shall be served on the parties and the purchaser as well as in cases under section 69 subsection (3) a surety declared to be jointly liable and in cases under section 81 subsections (2) and (3) the highest bidder. Those persons who still must credibly demonstrate a registered right shall also be deemed parties.

(3) The notice scheduling the date of the distribution shall be posted on the court public notice board.

(4) If the notice scheduling the date of the distribution is not served two weeks prior to such date on the purchaser and in cases under section 69 subsection (3) a surety declared to be jointly liable and in cases under section 81 subsections (2) and (3) the highest bidder, the date shall be stricken and rescheduled to the extent the proceedings were not approved.

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Section 106

In preparation of the distribution proceeding, in the notice scheduling the date of the distribution the court may require the parties to submit an accounting of their claims within two weeks. In such case, subsequent to the expiration of the deadline, the court shall prepare a distribution plan and at least three days prior to the date of distribution it shall place it in the court registry for review by the parties.

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Section 107

(1) At the hearing regarding the distribution of the proceeds, the amount of the funds to be distributed shall be established. Also included in the funds to be distributed are the proceeds from those objects that were separately auctioned or otherwise realised in cases under section 65.

(2) The payments to be made by the purchaser at the hearing shall be made to the court. Section 49 subsection (3) shall apply mutatis mutandis.

(3) An amount of money that has been paid to the court cashier's office as security for the bid by the purchaser shall be accounted for as to the payment pursuant to subsection (2) sentence 1.

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Section 108

(repealed)

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Section 109

(1) The costs of the proceedings shall be deducted from the proceeds of the auction in advance with the exception of the costs arising from the court order commencing the proceedings, the joinder of a creditor, the acceptance of the highest bid, or subsequent hearings concerning the distribution.

(2) The excess amount shall be distributed among those rights that are to be covered by payment.

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Section 110

Rights that were not timely registered or credibly demonstrated despite the specific demand in section 37 no. 4 shall be ranked lower than the other rights in the distribution.

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Section 111

A claim with a fixed maturity date shall be deemed due. If the claim is not interest-bearing the entitled person shall only be paid that amount that equals the amount of the claim and the inclusion of statutory interest for the time period between the payment and the due date; to the extent the due date is unknown, the claim shall be considered as subject to a condition precedent.

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Section 112

(1) If at the auction of several plots of real estate the acceptance of the highest bid is issued based upon an aggregated offer and if distribution of the proceeds among the individual plots of real estate is necessary, initially that amount shall be deducted from the proceeds that covers costs as well as satisfaction of those rights taken into consideration in establishing the lowest bid and to be covered by payment as to which the undivided plots of real estate are liable.

(2) The excess amount shall be distributed among the individual plots of real estate in accordance with the relationship of the values of the plots of real estate. Included in the excess amount shall be the amount of the rights that are not extinguished pursuant to section 91. The portion of the proceeds attributable to a plot of real estate shall include the amount associated with the rights that remain effective concerning the plot of real estate. If there is such a right in several of the auctioned plots of real estate, as to each only that amount that is proportionate to the value of the plots of real estate shall be allowed for.

(3) If the portion of the proceeds allocable to an individual plot of real estate pursuant to subsection (2) is insufficient to satisfy those claims that were to be adjusted in accordance with the lowest bid or that were to be covered by the highest bid reached through an invitation for a separate bid on the plot of real estate, the portion shall be increased by such shortfall.

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Section 113

(1) At the hearing regarding the distribution of the proceeds, after hearing those parties present, the court shall put forward the distribution plan with the assistance of an accounting expert if necessary.

(2) The plan shall also contain those rights that are not extinguished pursuant to section 91.

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Section 114

(1) The distribution plan shall include claims to the extent the amount or highest amount thereof was apparent from the land register at the time of the entry of the note concerning the enforced auction, based upon the contents of the register, otherwise they shall only be included when they are registered at the latest at the auction. The creditor's claims shall be deemed registered insofar as they arise from the application for the compulsory auction.

(2) Registration shall not be required for current amounts for periodic payments that are to be made based upon the contents of the land register.

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Section 114a

If acceptance of the highest bid is issued to a bid from a person entitled to satisfaction from the plot of real estate, which including the net present value of the rights remaining in effect in accordance with the auction terms is less than seven-tenths of the value of the real estate, the purchaser shall also be satisfied from the real estate to the extent that his claim is not covered by the highest bid submitted but by a bid in an amount that would cover the seven-tenths limit. In this context rights higher or equal in rank to the claim of the purchaser that extinguish shall not be taken into consideration.

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Section 115

(1) There shall be immediate negotiations concerning the distribution plan. Sections 876 through 882 of the Code of Civil Procedure shall apply mutatis mutandis to the negotiations, the handling of objections filed, and the implementation of the plan.

(2) If a claim registered prior to the hearing is not incorporated into the plan pursuant to the application, the registration shall be deemed an objection to the plan.

(3) The objection of the debtor to an enforceable claim shall be handled in accordance with sections 767, 769, and 770 of the Code of Civil Procedure.

(4) To the extent the debtor may avoid the satisfaction of such a claim by payment of a security or deposit, implementation of the plan shall not occur if such security payment or deposit has occurred.

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Section 116

Implementation of the distribution plan shall be stayed until the acceptance of the highest bid is final and binding if the purchaser or in cases under section 69 subsection (3) a surety declared to be jointly liable and in cases under section 81 subsections (2) and (3) the highest bidder applies for the stay.

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Section 117

(1) To the extent the proceeds of the auction are available as money, the distribution plan shall be implemented by payment to the entitled persons. The payment shall be made on a non-cash basis.

(2) Payment to an entitled person who is not present at the hearing shall be ordered ex officio. The form of the pay-out shall be determined in accordance with the Land law. If payment cannot be made, the amount intended for the entitled person shall be deposited.

(3) In the event of the deposit of the proceeds, instead of payment, instructions concerning the deposited amount may be issued.

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Section 118

(1) To the extent the cash bid is not adjusted, the distribution plan shall be implemented so that the debt against the purchaser is transferred to the persons entitled and in cases under section 69 subsection (3) the claim against a surety declared to be jointly liable is transferred jointly to the persons entitled; transfer and joint transfer shall take place by court order.

(2) The transfer shall have the same effect as satisfaction from the real estate. This effect, however, shall not arise in cases under subsection (1) if the entitled person declares his waiver of the rights from the transfer to the court or applies for an enforced auction prior to the expiry of three months. If the application for an enforced auction is withdrawn or the proceedings are terminated pursuant to section 31 subsection (2), it shall have the same effect as not having been made. In the case of waiver, the court shall inform the purchaser and those persons to whom the debt transfers as a result of the waiver of such declaration.

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Section 119

If an amount is allocated to a conditional claim the distribution plan shall establish the way in which the amount would otherwise be distributed if the claim ceases to exist.

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Section 120

(1) If the claim is subject to a condition precedent the amount shall be deposited for the entitled persons. To the extent the amount is not paid, the debt against the purchaser shall transfer to the entitled persons. The deposit as well as the transfer shall take place for each subject to the relevant condition.

(2) During the interim period the provisions in sections 1077 through 1079 of the Civil Code shall apply to investing the deposited money, termination and collection of the transferred debt, and investment of the collected money; the form of investment shall be determined by the person that will receive the amount if the condition does not occur.

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Section 121

(1) In cases under section 92 subsection (2) as to the reimbursement claim an amount shall be included in the distribution plan that is equal to the sum of all future payments, however, it shall not exceed twenty-five times the amount of an annual payment; at the same time it shall be determined that the individual payments shall be deducted at the due date from the interest and the amount itself.

(2) The provisions in sections 119 and 120 shall apply mutatis mutandis; the form of investment of the money shall be determined by the first entitled person.

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Section 122

(1) If several plots of real estate that are liable for the claim of a party are auctioned in the same proceeding, only that amount shall be included in the distribution plan that is determined in proportion to the proceeds as to each individual plot of real estate notwithstanding the provisions in section 1132 subsection (1) sentence 2 of the Civil Code. The proceeds shall be calculated with a deduction for the amount of the claims that have priority above the claim of the party.

(2) If payment of an amount allocated to the claim of a party is not made, the claim shall be included in the plan as to each plot of real estate in such amount.

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Section 123

(1) To the extent the amount allocated to a claim for which another plot of real estate is also liable is not paid, the way in which the amount should otherwise be distributed if the right to satisfaction from the allocated amount extinguishes pursuant to the separate provisions concerning the general mortgage shall be established in the distribution plan.

(2) The allocation shall be implemented so that the debt is transferred against the purchaser subject to a corresponding condition.

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Section 124

(1) In the event there is an objection to the distribution plan, the plan shall establish the way in which the disputed amount is to be allocated if the objection is held to be well-founded.

(2) The provisions in section 120 shall apply mutatis mutandis; the form of investment shall be determined by the person asserting the claim.

(3) The same shall apply to the extent implementation of the plan does not occur pursuant to section 115 subsection (4).

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Section 125

(1) If the purchaser must pay an amount in addition to the portion of the highest bid to be adjusted by payment pursuant to sections 50 and 51, the recipient of this payment shall be established in the distribution plan. The allocation shall be implemented by a transfer of the debt against the purchaser.

(2) If it is not known or if there is a dispute as to whether a further amount is to be paid, allocation and transfer shall occur subject to a corresponding condition. Sections 878 through 882 of the Code of Civil Procedure shall not be applicable.

(3) The transfer shall not have the effect of satisfaction from the real estate.

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Section 126

(1) If the person entitled to an allocated amount is unknown, especially if the certificate concerning a mortgage, land charge, or annuity land charge has not been presented, the distribution plan shall establish the way in which the amount is to be distributed if the entitled person cannot be determined.

(2) The amount shall be deposited for the unknown entitled persons. To the extent the amount is not paid, the debt shall be transferred to the entitled persons against the purchaser.

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Section 127

(1) If the certificate is presented concerning a mortgage, land charge, or annuity land charge extinguished as a result of the auction, the court shall render it unusable. If the right is only partially extinguished, a corresponding notation shall be made on the certificate. If the certificate is not presented, the court may request it from the entitled person.

(2) In the case of presentation of an enforceable title regarding a claim as to which an amount will be allocated, the court shall make a notation on the title concerning the extent to which the amount is covered by payment, deposit, or transfer.

(3) The wording of the notation shall be set forth in the record.

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Section 128

(1) Insofar as the debt against the purchaser regarding a claim is transferred, as to such debt a security mortgage shall be entered for the plot of real estate with the same rank as that of the claim. If the right from which the claim arose was encumbered by the right of a third party based upon the contents of the land register, this right shall also be entered as a right in the debt.

(2) Insofar as the debt against the purchaser remains undistributed, a security mortgage shall be entered for the person who was the owner of the real estate at the time of the acceptance of the highest bid.

(3) The mortgage shall come into existence upon entry. If the mortgage and ownership are held by one person, it cannot be asserted to the detriment of a right that has remained effective or of a security mortgage entered pursuant to subsections (1) and (2).

(4) If the real estate is again auctioned publicly, the amount necessary to cover the mortgage shall be taken into account as a portion of the cash bid.

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Section 129

The security mortgage for the claims designated in section 10 nos. 1 through 3, for the claims for periodic payments designated in section 10 no. 4, and for the costs designated in section 10 subsection (2) cannot be asserted to the detriment of rights that remain in existence and the remaining security mortgages entered pursuant to section 128 subsections (1) and (2) unless prior to the expiry of six months after the entry the person entitled to the mortgage applies for the enforced auction of the real estate. If the application for the enforced auction is withdrawn or the proceedings terminated pursuant to section 31 subsection (2), it shall be deemed to have not been submitted.

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Section 130

(1) If the distribution plan has been implemented and the acceptance of the highest bid is final and binding, the land registry shall be requested to enter the purchaser as owner, to delete the note concerning the enforced auction and the rights extinguished by the acceptance of the highest bid, and to cause the entry of the security mortgage for the debt against the purchaser. Upon entry of the mortgage it shall be made apparent in the land register that it has taken place based upon enforced auction proceedings.

(2) If it arises that a right taken into consideration in establishing the lowest bid did not come into existence or that it is extinguished, the request shall also include the deletion of such right.

(3) If the purchaser, before he was registered as the owner, approved the entry of a right in the auctioned plot of real estate, the entry shall not occur prior to the completion of the request described in subsection (1).

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Section 130a

(1) To the extent the effects of a priority notice exist pursuant to section 1179a of the Civil Code as to the creditor of an extinguished right vis-à-vis a mortgage, land charge, or annuity land charge that remains in existence, such effects shall cease upon the implementation of the request pursuant to section 130.

(2) If as to such a right the claim for deletion pursuant to section 1179a of the Civil Code vis-à-vis a right that remains in existence is not extinguished pursuant to section 91 subsection (4) sentence 2, the request pursuant to section 130 for an application to be submitted by the person entitled to a claim at the latest at the hearing regarding the distribution of the proceeds shall, however, also include that a priority notice to secure the claim for deletion arising from an extinguished mortgage, land charge, or annuity land charge in his favour as to the right that remains in existence shall be entered. The priority notice secures the claim for deletion from the same point in time at which the effects of section 1179a subsection (1) sentence 3 of the Civil Code commence. Whoever is adversely affected by the entry of the priority notice may request agreement for deletion from the entitled person if, at the time of the extinguishment of his right, he was not entitled to a claim for deletion of the right remaining in existence nor would he request additional satisfaction upon realisation of this claim; the costs of deletion of the priority notice and the declarations necessary therefor shall be borne by the person in whose favour the priority notice was entered.

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Section 131

In cases under section 130 subsection (1) for the deletion of a mortgage, land charge, or annuity land charge and in cases under section 128 for the entry of the priority of a security mortgage, presentation of the certificate issued in regard to the right shall not be required. The same shall apply to the entry of a priority notice pursuant to section 130a subsection (2) sentence 1.

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Section 132

(1) Following the implementation of the distribution plan, the debt against the purchaser, in cases under section 69 subsection (3) also against a surety declared to be jointly liable and in cases under section 81 subsection (4) also against the one who submitted the highest bid declared to be jointly liable, the claim arising from the security mortgage against the purchaser and every subsequent owner shall be enforceable. This provision shall not be applicable insofar as the purchaser is required to pay an additional amount pursuant to sections 50 and 51.

(2) Compulsory enforcement shall take place based upon an enforceable copy of the court order by way of which the acceptance of the highest bid is issued. The entitled person and the amount of the debt shall be provided for in the court certificate of enforceability; service of a document concerning the transfer of the debt shall not be required.

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Section 133

Compulsory enforcement as to the plot of real estate is permissible against the purchaser without service of the enforceable title or the court certificate of enforceability issued pursuant to section 132; it may take place even if the purchaser was not yet entered as owner. Presentation of the certificate designated in section 17 subsection (2) shall not be required insofar as no request for entry has yet been made to the land registry.

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Section 134

(repealed)

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Section 135

If the person entitled to an allocated amount is unknown, the court responsible for execution shall appoint a representative to determine the person entitled. The provisions in section 7 subsection (2) shall apply mutatis mutandis. The expenses and fees incurred by the representative shall be paid for from the allocated amount in advance.

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Section 136

If the evidence of the person entitled is dependent upon the submission of the certificate concerning a mortgage, land charge, or annuity land charge, such certificate may also be declared invalid by way of a public notice proceeding if the right has previously been deleted.

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Section 137

(1) If the person entitled is subsequently determined, the distribution plan shall be implemented further.

(2) If there is an objection to the claim, the person who lodged the objection shall be notified of the determination of the person entitled. The deadline set forth in section 878 of the Code of Civil Procedure for filing a court action shall commence upon service of the notification.

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Section 138

(1) If the person entitled has not been determined prior to the expiry of three months from the hearing regarding the distribution of the proceeds, upon application the court shall authorise the party who was allocated an amount in the alternative to apply for a public notice proceeding for the purpose of excluding unknown entitled persons to satisfaction from the allocated amount.

(2) If following the issuance of the authorisation the person entitled is determined, the court shall notify the authorised persons hereof. The authorisation shall expire upon the notification.

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Section 139

(1) In the event of subsequent determination of the person entitled the court may schedule a hearing for further implementation of the distribution plan. The notice scheduling the date of the hearing shall be served on the person entitled and their representative, the party to whom the amount was alternatively allocated, and the person who was the owner of the real estate at the time of the acceptance of the highest bid.

(2) If there is an objection to the claim, service of the notice scheduling the date of the hearing shall also be served on the person who lodged such objection. The deadline set forth in section 878 of the Code of Civil Procedure for filing a court action shall commence with the hearing.

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Section 140

(1) The court responsible for execution shall have jurisdiction over the public notice proceeding.

(2) As a basis for the application, the applicant shall provide the legal successor of the last person determined to be the person entitled known to him.

(3) In the public notice the unknown entitled person shall be requested to register his right within the public notice deadline, the failure of which will result in his exclusion from satisfaction from the allocated amount.

(4) The public notice shall be served on the last person determined to be the person entitled, the legal successor indicated, and the representative of the unknown entitled person.

(5) A registration that occurred during the enforcement proceedings shall also be effective for the public notice proceedings.

(6) The applicant may request reimbursement of the costs of the proceedings from the allocated amount.

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Section 141

Following the issuance of the exclusion order, the court shall schedule a hearing date for further implementation of the distribution plan. The notice scheduling the date of the hearing shall be served on the applicant and those persons who have rights reserved in the judgment, the representative of the unknown entitled person, and the person who was the owner of the real estate at the time of the acceptance of the highest bid.

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Section 142

In cases under section 117 subsection (2) and sections 120, 121, 124, and 126 rights in the deposited amount shall be extinguished upon the expiry of thirty years if the authorised recipient has not registered with the depository prior to that time; the person who was the owner of the real estate at the time of the acceptance of the bid shall be entitled to collect. The thirty year deadline shall commence upon the deposit being made, in cases under sections 120 and 121 upon the fulfilment of the condition under which the deposit was made.

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Section 143

The distribution of the proceeds of the auction by the court shall not occur if evidence is provided to the court through public or publicly certified documents that the parties have reached agreement on the distribution of the proceeds.

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Section 144

(1) If the purchaser or in cases under section 69 subsection (3) a surety declared to be jointly liable provides evidence to the court through public or publicly certified documents that he has provided satisfaction to those persons entitled whose claims were covered by the offer or that he has been accepted as the sole debtor by them, upon court order the documents together with the declaration of the purchaser or the surety shall be submitted to the court registry for review by the parties. The parties shall be notified of the submission and shall be requested to assert objections without a particular form within two weeks.

(2) If objections without a particular form are not lodged within the two week deadline, the distribution proceedings shall be limited to the distribution of the proceeds from those objects that were separately auctioned in cases under section 65 or otherwise realised.

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Section 145

The provisions in section 105 subsection (2) sentence 2 and sections 127 and 130 through 133 shall apply mutatis mutandis to cases under sections 143 and 144.

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IX. Charges on real property in foreign currency

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Section 145a

The following special provisions shall apply to compulsory sales by auction of plots of real estate subject to a mortgage, land charge, or annuity land charge in one of the currencies allowable pursuant to section 28 sentence 2 of the Land Register Code (Grundbuchordnung; GBO):

1.  The notice scheduling the hearing date shall contain the information that the real estate is encumbered by a mortgage, land charge, or annuity land charge in one of the currencies allowable pursuant to section 28 sentence 2 of the Land Register Code and the designation of such currency.

2.  During the enforced auction, prior to the call for the submission of bids, the value of the mortgage, land charge, or annuity land charge in the foreign currency allowable pursuant to section 28 sentence 2 of the Land Register Code based upon the officially determined last exchange rate shall be established and announced. This exchange rate shall be decisive for further proceedings.

3.  The amount of the cash bid shall be established in euros. Bids shall be submitted in euros.

4.  The distribution plan shall be prepared in euros.

5.  If a creditor does not completely satisfy a mortgage, land charge, or annuity land charge registered in a foreign currency allowable pursuant to section 28 sentence 2 of the Land Register Code, the remaining portion of his debt shall be determined in such foreign currency. The determination shall be decisive as to the liability of jointly encumbered objects, as to the obligation of the personal debtor, and as to the assertion of default in insolvency proceedings.

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Title 3
Receivership of real estate

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Section 146

(1) The provisions concerning orders for enforced auctions shall apply mutatis mutandis to orders for receivership of real estate, insofar as sections 147 through 151 do not provide otherwise.

(2) The parties shall be notified of the order subsequent to receipt of the information from the land registry designated in section 19 subsection (2).

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Section 147

(1) Receivership shall also take place based upon a claim arising from a registered right if the prerequisites in section 17 subsection (1) are not met but the debtor has proprietary possession of the real estate.

(2) Possession shall be credibly demonstrated through documents insofar as it is not evident to the court.

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Section 148

(1) Seizure of the real estate shall also encompass the objects described in section 21 subsections (1) and (2). The provision in section 23 subsection (1) sentence 2 shall not be applicable.

(2) The administration and use of the real estate shall be withdrawn from the debtor by the seizure.

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Section 149

(1) If the debtor resides on the real estate at the time of the seizure he shall be allowed to retain the rooms necessary for his household.

(2) If the debtor or a member of his household endangers the real estate or its administration, upon application the court shall enjoin the debtor to vacate the real estate.

(3) During the receivership of real estate that is used for agriculture, forestry, or horticulture purposes, the receiver shall make funds available to the debtor from the earnings of the real estate or from its proceeds that are necessary to fulfil the indispensable needs of the debtor and his family. In disputed cases the court responsible for execution shall decide after hearing the creditor, the debtor, and the receiver. The order shall be appealable by a complaint subject to a time limit.

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Section 150

(1) The administrator shall be appointed by the court.

(2) The court shall turn over the real estate to the administrator through the bailiff or another civil servant or shall issue the authorisation to him to obtain possession on his own.

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Section 150a

(1) If as to a plot of real estate subject to receivership the parties include a public body, an institute subject to government control, a mortgage bank, or a settlement company within the meaning of the Reich Settlement Act (Reichssiedlungsgesetz; RSiedlG), such party may recommend a person in its service as administrator within the deadline set by the court responsible for execution.

(2) The court shall appoint the recommended person as administrator if the party assumes the liability incumbent upon the administrator pursuant to section 154 sentence 1 and there are no reservations as to the recommended person with regard to him personally or the form of administration. The recommended administrator shall not receive compensation for his activities.

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Section 150b

(1) As to receivership of real estate used for agriculture, forestry, or horticulture purposes the debtor shall be appointed as administrator. Such appointment shall not be made in the event that he is not prepared to do so or when from the circumstances it cannot be expected that he will properly manage the administration.

(2) Prior to the appointment the creditor pursuing compulsory enforcement, any parties of the type set forth in section 150a, and the lower administrative authorities shall be heard.

(3) A recommendation made in accordance with section 150a shall only be taken into consideration in the event the debtor is not appointed as administrator.

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Section 150c

(1) If the debtor is appointed as receiver, the court shall appoint a supervisor. The supervisor may also be a public agency or legal person.

(2) The provisions in section 153 subsection (2) and section 154 sentence 1 shall apply to the supervisor mutatis mutandis. Court orders that are served on the administrator shall also be served on the supervisor. Prior to the issuance of instructions within the meaning of section 153, the supervisor shall also be heard.

(3) The supervisor shall promptly report to the court if the debtor violates any of his duties as administrator.

(4) The debtor shall conduct the administration under the supervision of the supervisor. He shall be obligated to provide the supervisor with information concerning the real estate, the operation and the legal relationships relating to the management, and to allow review of available records at any time. To the extent there are business dealings beyond the scope of the ongoing management, the debtor shall timely obtain the decision of the supervisor.

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Section 150d

As administrator, the debtor may only exercise disposal over the usufructs of the real estate and the proceeds therefrom, notwithstanding the provisions in sections 155 through 158, with the approval of the supervisor. He shall have authorisation as to the collection of claims encompassed by the seizure without the requirement of approval; nevertheless, he shall be obligated to immediately invest the amounts that at the time are not required for necessary payments in accordance with further order of the court.

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Section 150e

The debtor shall not receive any compensation as administrator. If necessary, after hearing the supervisor the court shall determine the extent of the earnings from the real estate or its proceeds that the debtor may use to fulfil his indispensable needs and those of his family.

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Section 151

(1) The seizure shall also be effective upon the administrator obtaining possession of the real estate in accordance with section 150.

(2) The court order by way of which the joinder of a creditor is admitted shall be served upon the administrator; the seizure shall also be effective upon such service in favour of the creditor if the administrator was in possession of the real estate at that time.

(3) A prohibition on payments to a third party debtor shall also be issued upon the application of the administrator.

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Section 152

(1) The administrator shall have the right and the duty to undertake all actions that are necessary to maintain the economic viability of the real estate and to ensure its proper use; he shall assert the claims encompassed by the seizure and shall convert such into cash as necessary for the administration of the real estate.

(2) If the real estate had been handed over to a lessee or usufructary lessee prior to the seizure, the rental agreement or lease shall also be effective vis-à-vis the administrator.

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Section 152a

The Federal Ministry of Justice and Consumer Protection shall be authorised to further regulate the position, duties, and management of receivers as well as compensation (fees and expenses) by way of statutory instrument with the approval of the Bundesrat. The amount of the compensation shall be based upon the type and scope of the duties as well as the performance of the receiver. Both minimum rates and maximum rates shall be provided for.

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Section 153

(1) The court shall provide necessary instructions to the administrator for the administration after hearing the creditor and the debtor, establish the compensation to be paid to the administrator, and oversee the management; in suitable cases an expert shall be consulted.

(2) The court may require the payment of a security by the administrator, establish coercive fines against him, and remove him. Coercive fines shall be warned of in advance.

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Section 153a

If according to customary practice in an area the livestock belonging to an agricultural operation are not an accessory to the real estate, if the debtor is appointed as receiver, pursuant to section 153 the court responsible for execution shall issue instructions concerning the amounts that the debtor shall receive as payment from the distribution funds for the fact that the livestock are to be fed from the proceeds of the real estate and the manner in which fulfilment of this obligation shall be secured.

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Section 153b

(1) If insolvency proceedings have been opened concerning the debtor's assets, upon application of the insolvency administrator the complete or partial stay of the receivership shall be ordered if the insolvency administrator credibly demonstrates that economically sensible use of the insolvency estate will be significantly impaired by continuation of the receivership.

(2) The stay shall be subject to the condition that disadvantages to the creditor pursuing compulsory enforcement arising from the discontinuance shall be compensated by ongoing payments from the insolvency estate.

(3) Prior to a court decision, the receiver and the creditor pursuing compulsory enforcement shall be heard.

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Section 153c

(1) Upon application of the creditor pursuing compulsory enforcement the court shall set aside the order for the temporary stay if the prerequisites for the stay are no longer met, if the conditions pursuant to section 153b subsection 2 are not adhered to, or if the insolvency administrator agrees to the setting aside of the order.

(2) Prior to a court decision the insolvency administrator shall be heard. If the order is not set aside, the effects of the order shall cease upon the conclusion of the insolvency proceedings.

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Section 154

The administrator shall be responsible for the fulfilment of all obligations incumbent upon him vis-à-vis all parties. He shall provide the creditor and the debtor with a financial accounting annually and at the conclusion of the administration. The financial accounting shall be submitted to the court and the court shall present it to the creditor and the debtor.

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Section 155

(1) The outlays for the administration as well as the costs of the proceedings with the exception of those that arise from the order commencing the proceedings or the joinder of a creditor shall be provided for in advance from the usufructs of the real estate.

(2) Surplus funds shall be distributed among the claims designated in section 10 subsection (1) nos. 1 through 5. In this context, however, only claims in the second, third, and fourth ranking class that concern ongoing periodic payments, including payments on annuity land charges, as well as consideration of those amounts that are required to be paid as the gradual repayment of a debt as a surcharge to interest shall be paid. Instalment amounts on non-interest-bearing debt shall be taken into consideration the same as ongoing periodic payments to the extent they do not exceed five percent of the original debt amount.

(3) If the creditor pursuing receivership granted advance payments for repair, additions, or renovation work to buildings, interest shall accrue on these amounts at the rate of one-half percent above the interest rate of the marginal lending facility rate of the European Central Bank. In the receivership and enforced auction interest shall have the same priority as the advance payments themselves.

(4) If the receiver or, if the debtor has been appointed administrator, the debtor with the approval of the supervisor acquired fertiliser, seeds, or animal feed that was necessary as part of the economic operations up until then for the proper maintenance of the business, the claims based upon these deliveries shall have the rank as set forth in section 10 subsection (1) no. 1. The same shall apply to credit taken to pay for these deliveries in the manner usual for these types of transactions.

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Section 156

(1) The current amounts for public charges shall be adjusted by the administrator without additional proceedings. This shall also be applicable to an enforcement concerning residential property for the current amounts from claims that are due for payment of amounts as to the charges and costs of joint property or separate property that are owed in accordance with section 16 subsection (2) and section 28 subsections (2) and (5) of the Residential Property Act including advance payments, accruals, and recourse claims of individual property owners. The provision in section 10 subsection (1) no. 2 sentence 3 shall not be applicable.

(2) If there is an expectation that payments could also be made in regard to other claims, after receipt of the information from the land registry designated in section 19 subsection (2) the date for the hearing regarding the distribution of the proceeds shall be scheduled. At the hearing, the distribution plan for the entire duration of the proceedings shall be presented. The date of the hearing regarding the distribution of the proceeds shall be served on the parties and the administrator. The provisions in section 105 subsection (2) sentence 2, section 113 subsection (1), and sections 114, 115, 124, and 126 shall apply mutatis mutandis.

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Section 157

(1) Subsequent to the establishment of the distribution plan, the court shall order the payment of such amounts to the entitled persons according to the plan; the order shall be amended in the event the joinder of a creditor is subsequently admitted. Payments shall be made at the time they are due by the administrator to the extent there are sufficient funds.

(2) The provisions in sections 135 through 141 shall be adhered to in regard to the deposit of a distributed amount for unknown entitled persons. The provisions in section 142 shall be applicable.

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Section 158

(1) For the making of payments against the principal of a mortgage, against a land charge, or against the redemption sum of an annuity land charge the court shall schedule a hearing date. An application shall be submitted by the administrator for the scheduling a hearing date.

(2) To the extent the entitled persons have requested satisfaction, the land registry shall be requested by the court to delete the right. A copy of the record shall be included; presentation of the certificate issued concerning the right shall not be required for the deletion.

(3) Otherwise the provisions in sections 117 and 127 shall apply mutatis mutandis.

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Section 158a

The following special provisions shall apply to the receivership of a plot of real estate that is encumbered with a mortgage, land charge, or annuity land charge in a currency permitted in accordance with section 28 sentence 2 of the Land Register Code:

1.  The amounts that are attributable to a registered right in the foreign currency shall be established in the distribution plan in the registered currency.

2.  Payment shall be made in euros.

3.  The administrator shall make periodic payments in accordance with the exchange rate on the due date. The court shall determine the payments against the principal during the hearing for payments set in accordance with the officially determined exchange rate.

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Section 159

(1) Each party may obtain an amendment to the distribution plan as part of a civil action, even if he did not lodge an objection to the plan.

(2) Return of a payment made in accordance with the plan cannot be demanded based upon subsequent amendment to the plan.

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Section 160

The provisions in sections 143 through 145 concerning out-or-court distribution shall apply mutatis mutandis.

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Section 161

(1) Termination of the proceedings shall occur by way of an order of the court.

(2) The proceedings shall be terminated if the creditor has been satisfied.

(3) The court may order termination if continuation of the proceedings requires special expenses and the creditor does not advance the necessary amount of money.

(4) Otherwise the provisions in sections 28, 29, 32, and 34 shall apply mutatis mutandis to the termination of the proceedings.

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Part 2
Enforced auction of ships, ships under construction, and aircraft through compulsory enforcement

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Title 1
Enforced auction of ships and ships under construction

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Section 162

The provisions in Part 1 shall be applicable mutatis mutandis to enforced auction of a ship registered in the register of ships or a ship under construction registered in the register of ships under construction or that could be registered in such register to the extent sections 163 through 170a do not provide otherwise.

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Section 163

(1) As to the enforced auction of a registered ship, the Local Court in the district of which the ship is located shall have jurisdiction as the court responsible for execution; section 1 subsection (2) shall apply mutatis mutandis.

(2) As to the proceedings, the register of ships shall take the place of the land register.

(3) The social insurance agencies including the agency responsible for unemployment insurance shall be deemed parties even if they have not registered a claim. As to the enforced auction of an ocean-going vessel the German social insurance for seafarers (Knappschaft-Bahn-See) and as to the enforced auction of an inland waterway vessel the German Social Accident Insurance Institution for Commercial Transport, Postal Logistics and Telecommunication (Berufsgenossenschaft Verkehrswirschaft Post- Logistik Telekommunikation) shall represent the remaining insurance organisations vis-à-vis the court responsible for execution.

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Section 164

The limitations in section 17 shall not be applicable to the enforced auction of a registered ship insofar as there is nothing to the contrary arising from the provisions of the Commercial Code (Handelsgesetzbuch; HGB) or the Inland Waterways Act (Binnenschifffahrtsgesetz; BinSchG); the facts necessary in this regard as a basis for the application for an enforced auction shall be credibly demonstrated through documents to the extent they are not evident to the court; the application for an enforced auction shall include a certificate from the registry authorities concerning the entry of the ship in the register of ships.

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Section 165

(1) Upon ordering an enforced auction the court shall concurrently order the custody and safekeeping of the ship. The seizure shall also be effective upon the execution of this order.

(2) At the same time as the temporary stay of the proceedings in agreement with the creditor pursuing compulsory enforcement, the court may order that the duties of custody and safekeeping are transferred to a trustee selected by the court. The trustee shall be subject to the supervision of the court and is bound to the instructions issued to him by the court. In agreement with the creditor, the court may also authorise that the ship be used for the account of and in the name of the debtor. The court shall decide on the use of the net earnings. In general, they shall be distributed in accordance with the principles in section 155.

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Section 166

(1) If the proceedings are ordered against the skipper based upon an enforceable title that is also enforceable against the owner, the seizure shall be effective against the owner at the same time.

(2) In this event, the skipper shall be deemed a party only for as long as he is in charge of the ship; a new skipper shall be deemed a party if he registers with the court and credibly demonstrates his statements at the request of the court or a party.

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Section 167

(1) The designation of the ship in the notice scheduling the date of the auction shall be in accordance with the register of ships.

(2) The specific requirement in section 37 no. 4 shall also expressly include a reference to the rights of the ship's creditors.

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Section 168

(1) The notice scheduling the date of the auction shall also be announced in a suitable shipping trade journal. The Land governments are authorised to enact further provisions in this context by statutory instrument. The Land governments may delegate the authorisation to the Land justice administration departments.

(2) If the port of registry or the home port of the ship is in the district of a different court, the notice scheduling the date of the auction shall also be announced in a publication or an electronic information and communications system of such court intended therefor.

(3) The order provided for in section 39 subsection (2) shall not be admissible.

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Section 168a

(repealed)

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Section 168b

If a creditor regarding a ship registered his right within the six months prior to the announcement of the notice scheduling the date of the auction with the registry court, such registration shall be deemed effective before the court handling the auction. The registry court shall transmit the registrations it received within the past six months to the court handling the auction together with the documents and information designated in section 19 subsection (2).

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Section 168c

The following special provisions shall apply to the enforced auction of a ship that is encumbered with a ship mortgage in a foreign currency:

1.  The notice scheduling the date of the auction shall contain the information that the ship is encumbered with a ship mortgage in a foreign currency and the designation of such currency.

2.  At the auction, prior to the call for the submission of bids, the value of the ship mortgage registered in a foreign currency in accordance with the officially determined last exchange rate in euros shall be established and announced. This exchange rate shall be decisive for further proceedings.

3.  The amount of the cash bid shall be established in euros. Bids shall be submitted in euros.

4.  The distribution plan shall be prepared in euros.

5.  If a creditor of a ship mortgage registered in a foreign currency is not completely satisfied the remaining portion of his claim shall be determined in the foreign currency. The determination shall be decisive as to the liability of jointly encumbered objects, as to the obligation of the personal debtor, and as to the assertion of default in insolvency proceedings.

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Section 169

(1) If the ship has been let to a lessee or usufructary lessee, the provisions in section 578a of the Civil Code shall apply mutatis mutandis. Insofar as pursuant to section 578a subsection (2) of the Civil Code the transfer of ownership comes into question as to the effect of dispositions and legal transactions concerning a tenancy or lease, the seizure of the ship shall in its place be determinative; if the order by way of which the enforced auction is ordered is served on the lessee or usufructary lessee upon application of the creditor, upon such service the lessee or usufructary lessee shall be deemed to know of the seizure.

(2) Insofar as the cash bid has not been adjusted by the time of the hearing regarding the distribution of the proceeds, a ship mortgage in the ship shall be registered in the register of ships as to the claim against the purchaser. The ship mortgage is created upon entry even if the purchaser has since sold the ship. Otherwise the provisions of Act on Rights in Registered Ships and Ships under Construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken; SchRG) of 15. November 1940 (Reich Law Gazette I. p. 1499) shall be applicable to a ship mortgage created by legal transaction.

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Section 169a

(1) The provisions in sections 74a, 74b, and 85a shall not be applicable to the enforced auction of an ocean-going vessel; section 38 sentence 1 shall not be applicable in regard to information on the current market value.

(2) Section 68 shall be applicable with the proviso that a security in the amount of one-tenth of the cash bid shall be provided.

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Section 170

(1) In place of the administration that is permissible in accordance with section 94 subsection (1), judicial custody and safekeeping of the auctioned ship shall take place.

(2) The court shall terminate the measures enacted if the amount of money necessary for their continuation is not advanced.

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Section 170a

(1) The enforced auction of a ship under construction shall only be ordered after it has been registered in the register of ships under construction. However, an application for an order of enforced auction may be submitted prior to the entry.

(2) Sections 163 subsection (1), 165, 167 subsection (1), 168c, 169 subsection (2), and 170 shall apply with the necessary modifications. The register of ships under construction shall take the place of the land register. If the register of ships under construction is maintained by a court other than the court responsible for execution, the notice scheduling the date of the auction shall also be announced in the publication of such court intended therefor. A deadline of two weeks shall take the place of the deadline set forth in section 43 subsection (1) and a deadline of one week shall take the place of the deadline set forth in section 43 subsection (2).

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Section 171

(1) The provisions of the first part shall apply mutatis mutandis to the enforced auction of a foreign ship that would be required to be registered in the register of ships if it were a German vessel to the extent they do not require entry in the register of ships as a prerequisite and to the extent the following provisions do not provide otherwise.

(2) The Local Court in the district of which the ship is located shall have jurisdiction as the court responsible for execution; section 1 subsection (2) shall apply mutatis mutandis. An enforced auction shall only be ordered insofar as there is nothing to the contrary arising from the provisions of the Commercial Code or the Inland Waterways Act if the debtor has possession of the ship; the facts necessary in this regard as a basis for the application for an enforced auction shall be credibly demonstrated through documents to the extent they are not evident to the court.

(3) The notice scheduling the date of the auction shall contain a demand to all entitled persons, in particular the ship's creditors, to register their rights at the latest at the auction prior to the call for the submission of bids and if the creditor objects, to credibly demonstrate his claim, upon the failure of which the rights shall be ranked below the claim of the creditor and the other rights in the distribution of the proceeds from the auction. The notice scheduling the date of the auction, insofar as it will not lead to a significant delay in the proceedings, shall also be served upon the ship's creditors and other parties recognisable from the ship's documents and, if the ship is registered in the register of ships of a foreign country, such registry authority shall be informed.

(4) The provisions concerning the lowest bid shall not be applicable. The highest bid shall be adjusted as to its total amount by payment.

(5) The provisions in sections 165, 166, 168 subsections (1) and (3), 169a, and 170 subsection (1) shall be applicable. The guarding and safekeeping of the ship ordered by the court shall only be terminated and the ship handed over to the purchaser when evidence is provided of the adjustment of the highest bid or the agreement of the parties.

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Part 2
Enforced auction of aircraft

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Section 171a

The provisions of the first part shall apply mutatis mutandis to the enforced auction of an aircraft registered in the register of aircraft insofar as sections 171b through 171g do not otherwise provide. The same shall apply to the enforced auction of an aircraft entered into the register of aircraft liens, the entry of which has been deleted from the register of aircraft.

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Section 171b

(1) As to the enforced auction of an aircraft that Local Court shall have jurisdiction as court responsible for execution in the district of which the Federal Aviation Office (Luftfahrt-Bundesamt) is headquartered.

(2) The register of aircraft liens shall take the place of the land register for the proceedings.

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Section 171c

(1) The enforced auction shall only be ordered after the aircraft is entered into the register of aircraft liens. However, an application for an order of enforced auction may be submitted prior to the entry.

(2) Upon ordering the enforced auction the court shall concurrently order the custody and safekeeping of the aircraft. The seizure shall also be effective upon the execution of this order.

(3) At the same time as the temporary stay of the proceedings, in agreement with the creditor pursuing compulsory enforcement, the court may order that the duties of custody and safekeeping are transferred to a trustee selected by the court. The trustee shall be subject to the supervision of the court and is bound to the instructions issued to him by the court. In agreement with the creditor, the court may also authorise that the aircraft be used for the account of and in the name of the debtor. The court shall decide on the use of the net earnings. In general, they shall be distributed in accordance with the principles in section 155.

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Section 171d

(1) The designation of the aircraft in the notice scheduling the date of the auction shall be in accordance with the register of aircraft liens.

(2) The order provided for in section 39 subsection (2) shall not be admissible.

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Section 171e

The following special provisions shall apply to the enforced auction of an aircraft that is encumbered with a registered lien in a foreign currency:

1.  The notice scheduling the date of the auction shall contain the information that the aircraft is encumbered with a registered lien in a foreign currency and the designation of such currency.

2.  At the auction, prior to the call for the submission of bids, the value of the registered lien entered in a foreign currency shall be established and announced in accordance with the officially determined last exchange rate in euros. This exchange rate shall be decisive for further proceedings.

3.  The amount of the cash bid shall be established in euros. Bids shall be submitted in euros.

4.  The distribution plan shall be presented in euros.

5.  If a creditor of a registered lien entered in a foreign currency is not completely satisfied the remaining portion of his claim shall be determined in the foreign currency. The determination shall be decisive as to the liability of jointly encumbered objects, as to the obligation of the personal debtor, and as to the assertion of default in insolvency proceedings.

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Section 171f

Section 169 shall apply mutatis mutandis to the aircraft.

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Section 171g

(1) In place of the administration that is permissible in accordance with section 94 subsection (1), judicial custody and safekeeping of the auctioned aircraft shall take place.

(2) The court shall terminate the measures enacted if the amount of money necessary for their continuation is not advanced.

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Section 171h

The provisions in sections 171a through 171g shall apply mutatis mutandis to the enforced auction of a foreign aircraft insofar as sections 171i through 171n do not otherwise provide.

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Section 171i

(1) Only fees, customs duties, fines, and penalties arising from provisions concerning aircraft, customs duties, and immigration shall be satisfied in the third class (section 10 subsection (1) no. 3).

(2) Claims for interest arising from rights pursuant to section 103 of the Act on Rights in Aircraft (Gesetz über Rechte an Luftfahrzeugen; LuftFzgG) of 26. February 1959 (Federal Law Gazette I p. 57) shall enjoy the priority of the fourth class (section 10 subsection (1) no. 4) based on the current amounts and arrears from the past three financial years.

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Section 171k

If the aircraft is sold after the seizure or is encumbered with a right pursuant to section 103 of the Act on Rights in Aircraft and if the sale or encumbrance is to be recognized in accordance with Article VI of the Geneva Convention of 19 June 1948 (Federal Law Gazette 1959 II p. 129), the disposition is effective vis-à-vis the creditor unless the debtor knew of the seizure at the time of the disposition.

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Section 171l

(1) The court responsible for execution shall inform the public authority that maintains the register in which the rights in the aircraft are entered of the order for enforced auction if possible by airmail.

(2) The time period between the scheduling of the date and the date of the auction must be at least six weeks. Service of the notice scheduling the date of the auction on parties who live outside of Germany shall be effected by service by mailing. "Registered mail" must be stated on the documents mailed. When possible it shall be conveyed by airmail. The creditor at issue shall publicly announce the upcoming auction at least one month prior to the date at the location where the aircraft is entered in accordance with the provisions applicable there.

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Section 171m

A complaint against the issuance of the acceptance of the highest bid shall be filed within six months. If it is based upon the grounds in section 100, it must be filed within an emergency deadline of two weeks and thereafter it shall only be based upon a violation of the provisions in section 171l subsection (2).

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Section 171n

If the right of possession in an aircraft based upon a rental agreement that was concluded for six or more months is extinguished by the acceptance of the highest bid, the provisions concerning reimbursement as to a usufruct shall be applicable.

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Part Three
Enforced auction and receivership in special cases

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Section 172

If the application for enforced auction or receivership is submitted by the insolvency administrator, the provisions in the first and second parts shall apply mutatis mutandis, insofar as sections 173 and 174 do not provide otherwise.

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Section 173

The order through which commencement of the proceedings is ordered shall not be deemed seizure. Within the meaning of sections 13 and 55, however, service of the court order on the insolvency administrator shall be deemed seizure.

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Section 174

If a creditor has a right to satisfaction from the real estate that is recognized by the insolvency administrator concerning a debt against the debtor in the insolvency proceedings, up until the conclusion of the proceedings at the auction he may request that in the determination of the lowest bid only those rights with priority above his claims shall be considered; in such a case the plot of real estate shall also be offered with the requested variation.

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Section 174a

The insolvency administrator may request up until the conclusion of the proceedings at the auction that in the determination of the lowest bid only those rights with priority above the claims set forth in section 10 subsection (1) no. 1a shall be considered; in such a case the plot of real estate shall also be offered with the requested variation.

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Section 175

(1) If a creditor of the estate has a right to satisfaction from a plot of real estate that is part of the estate for his debt, the heir may apply for an enforced auction of the plot of real estate subsequent to acceptance of the inheritance. Every other person who could apply for a public notice procedure concerning creditors of the estate shall also be entitled to submit such an application.

(2) These provisions shall not be applicable if the heir has unlimited liability as to the obligations of the estate or if the creditor of the estate is precluded through a public notice procedure or is deemed to be a precluded creditor pursuant to sections 1974 and 1989 of the Civil Code.

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Section 176

If an application for an enforced auction is submitted pursuant to section 175, the provisions in the first and second parts as well as sections 173 and 174 shall apply mutatis mutandis, insofar as sections 177 and 178 do not provide otherwise.

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Section 177

The applicant shall credibly demonstrate through documents the facts that provide the basis for his right to submit the application to the extent it is not evident to the court.

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Section 178

(1) An enforced auction shall not be ordered when there has been an application for the opening of insolvency proceedings as to the estate.

(2) The enforced auction shall not be terminated by the opening of insolvency proceedings as to the estate; as to the further proceedings, the insolvency administrator shall be deemed the applicant.

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Section 179

If a creditor of the estate who could demand that the lowest bid be determined without consideration of his claim in accordance with section 174 is considered in the determination of the lowest bid, his satisfaction from the remaining estate may be denied.

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Section 180

(1) If the purpose of the enforced auction is to terminate a joint ownership, the provisions of the first and second parts shall apply mutatis mutandis insofar as sections 181 through 185 do not provide otherwise.

(2) A temporary stay of the proceedings shall be ordered upon the application of a co-owner for a duration of a maximum of six months if this appears reasonable when considering the conflicting interests of the various co-owners. Repetition of the stay one-time shall be permissible. Section 30b shall apply mutatis mutandis.

(3) If a co-owner pursues the enforced auction as the means for termination of joint ownership comprised of only the co-owner and his spouse, his former spouse, his life partner, or his former life partner upon the application of such spouse, former spouse, life partner, or former life partner the temporary stay of the proceedings shall be ordered if this is necessary to avoid serious endangerment to the welfare of a common child. Multiple repetitions of the stay shall be permissible. Section 30b shall apply mutatis mutandis. The court shall rescind or modify its order upon application if this required in consideration of a change in the circumstances.

(4) The proceedings shall not be temporarily stayed for more than a total of five years through orders in accordance with subsections (2) and (3).

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Section 181

(1) An enforceable title shall not be necessary.

(2) The enforced auction of a plot of real estate, a ship, a ship under construction, or an aircraft shall only be ordered when the applicant has been entered as owner in the land register, register of ships, register of ships under construction, register of liens on aircraft, or is an heir of an entered owner, or if he exercises the right of the owner or the heir as to termination of joint ownership. An application by the guardian of a co-owner shall only be made with the approval of the family court and by the custodian of a co-owner only with the approval of the custodianship court.

(3) (repealed)

(4) The provision in section 17 subsection (3) shall also be applicable to the heirs of the applicant.

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Section 182

(1) In the determination of the lowest bid the rights in the plot of real estate that encumber or jointly encumber the applicant's portion as well as all rights that have priority above or are equal to such rights, shall be considered.

(2) If in so doing as to one portion a larger amount is to be considered than as to another portion, the lowest bid shall be increased in order to reach the amount necessary for equalisation amount the co-owners.

(3)

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Section 183

In the event of the rent or lease of the real estate the measures provided for in sections 57a and 57b shall not be applicable.

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Section 184

A co-owner shall not be required to provide security for his bid if he has a mortgage, land charge, or annuity land charge covered in whole or in part by the bid.

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Section 185

(1) If a proceeding concerning an application for allocation of an agricultural operation pursuant to section 13 subsection (1) of the Real Property Transactions Act (Grundstückverkehrsgesetz; GrdstVG) of 28. July 1961 (Federal Law Gazette I p. 1091) is pending and the application encompasses a plot of real estate as to which an enforced auction has been ordered pursuant to section 180, the enforced auction proceedings shall be stayed as to this plot of real estate upon application until a final and binding decision has been taken as to the application for allocation.

(2) If the enforced auction of several plots of real estate is ordered and if the application for allocation only relates to one of the plots or certain individual plots, the court responsible for execution may order that the enforced auction shall be stayed including as to the plots of real estate not encompassed by the allocation proceedings.

(3) If an application for allocation is granted, the enforced auction shall be terminated to the extent it relates to the real estate allocated and shall otherwise be continued.

(4) Evidence that the prerequisites for the stay and termination of the enforced auction proceedings have been met shall be provided by the applicant.

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Section 186

Sections 3, 30c, 38, 49, 68, 69, 70, 72, 75, 82, 83, 85, 88, 103, 105, 107, 116, 117, 118, 128, 132, 144 and 169 in the version of Article 11 of the Act of 22 December 2006 (Federal Gazette I p. 3416) shall only be used for proceedings pending on 1 February 2007 to the extent payments are to be made later than two weeks after this date.