Question juridique clé
Whether the debtor could oppose definitive discharge by invoking the benefit of real discussion stemming from the fiduciary transfer of the mortgage note.
Solution extraite
Yes. The fiduciary agreement implied a clause requiring the creditor to proceed first against the pledged real property, and this defense could be raised in definitive discharge proceedings.
Motifs extraits
The note had been transferred as fiduciary security, not by novation. The defense is tied to enforcement order, not to the substance of the underlying debt, and may therefore be examined by the discharge judge. Because the bank did not prove an express waiver of the defense, discharge had to be refused.