Die "zwangsvollstreckungsrechtliche Treuhand" in der Immobilienfinanzierung

The paper examines how a borrower, who – for the purpose of real estate financing – is subject to a declaration of submission to judicial enforcement, can be protected from (unauthorized) execution by a new creditor. The author demonstrates that "entry" into the substantive security agreement as demanded by the Federal Court of Justice is not sufficiently convincing. The author subsequently develops a proprietary, dogmatically secured protection concept. By submitting the declaration of submission the lender and the debtor tacitly agree on a contract restricting enforcement, which prohibits the lender from using the declaration of submission as long as the debtor is not in default ("trust arrangement under judicial enforcement law"). Such contract restricting enforcement transfers to a new creditor. The author then examines and evaluates the provision of Section 799a German Code of Civil Procedural in detail.