T.C.
Supreme
General Assembly of Law
Main Number: 2013/1114
Decision No:2013/1041
K. Date:10.7.2013
At the end of the trial held due to the “cancellation of the objection and negative determination” case between the parties; Istanbul 1. Dec. In the main case of the Consumer Court, one of the defendants G. E. the dismissal of the case against him, the other defendants M. M. He. and R. M. the partial acceptance of the case against him; the day given on 11.09.2007 and 2004/3466 E. on the partial acceptance of the merged case., 2007/448 K. the examination of the numbered decision was conducted by the plaintiff’s attorney and one of the defendants M. M. He. with R. M. at the request of the deputy, the Supreme Court 13. With the decision of the Civil Chamber dated 24.02.2009 and numbered 2009/376-2234;
(…The plaintiff is one of the defendants, G. E.he claimed that he had given a mortgage loan to the in 2000, that the other defendants had signed the contract as guarantors, that the debt had not been paid despite the floor warning, that the attempted follow-up had also been objected to, and that it had been decided to cancel the objection and collect 40% compensation.
The defendants requested the rejection of the case by arguing that a limit mortgage was placed on the immovable in exchange for the loan granted, that the plaintiff bank initiated proceedings by converting the mortgage into money, that two proceedings could not be conducted together due to the same debt, sureties from the defendants M. M. He. and R. M In the cases of mergers, the part related to interest rates in the contract is left blank and the contract is undated, although the contract is made in foreign currency, the payments are TL. they requested that it be decided to determine that they were not in debt due to the follow-up initiated by claiming that a mortgage was granted at twice the rate of the loan taken out and that the contract was invalid.
Paid by Jul, even if the loan is provided with a mortgage, the surety can be followed up on an ordinary basis, provided that the collection is not repeated, the fact that the interest rates are not shown in the contract will not invalidate the contract, the contractual interest rate is shown in the repayment plan, in the interest of the plaintiff that he would not ask for the reason and based on the expert’s report in terms of the principal debtor that is not a valid objection by the terms Gülsüm the plaintiff and the defendant of the case as there are other legal benefits to sue the defendant posts bail rejection of the terms of the withdrawal of Appeal provided in the collection in euro 78.678.02 does not repeat itself 69.360 the actual credit amount.11,4% interest per annum from the date of follow-up to the euro and 5% interest to the application of BSMV, 49.057.96.TRY to collect denial compensation, 15.555.86 of the plaintiffs in the combined case.It was decided to determine that they did not owe YTL; The verdict was one of the plaintiffs and defendants M. M. He. and R. M. it has been appealed by (the plaintiffs of the merged case).
1-According to the articles in the file, the evidence on which the decision is based and the compelling reasons in accordance with the law, and especially the absence of an error in the assessment of the evidence, all other appeals of the plaintiffs of the plaintiff, the defendant-the plaintiffs of the combined case must be rejected.
2-Although the court decision has established a written provision in the court decision stating that even if the loan has been secured with a mortgage, the sureties can also be followed up in Jul, provided that the collection is not repeated, 45 of the Bankruptcy Code. In the Article “Even if the debtor of a receivable secured by a pledge is one of the persons subject to bankruptcy, the creditor can only follow up by converting the pledge into money. Jul. However, if the amount of the pledge is insufficient to pay the debt, the creditor may pursue the remaining receivable through bankruptcy or foreclosure.” it is written. It is not the subject of dispute that the plaintiff pursued two separate pursuits due to the loan he provided, both through the conversion of the mortgage into money and through foreclosure. In such a case, it is contrary to the procedure and the law that the provision has been established in writing without examining and examining the article of the law mentioned by the court and without taking action in accordance with this article.…)
for the reasons specified in the first paragraph, the plaintiff’s rejection of all other appeals of the plaintiffs of the defendant-merged case for the reasons specified in the first paragraph, the decision appealed for the reason specified in the second paragraph was overturned for the benefit of the plaintiffs of the defendant-merged case and was reversed instead of the file, at the end of the retrial, the court resisted the previous decision.
APPELLANT: Defendant-plaintiffs of the merged case M.. M.. He.. and
R.. M.. attorney
DECISION OF THE GENERAL ASSEMBLY OF LAW
The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the papers in the file were read, the necessity was discussed:
The main case is the cancellation of the objection; the combined case is related to negative determination claims.
The plaintiff is one of the defendants, G. E.he claimed that he had given a mortgage loan to the in 2000, that the other defendants had signed the contract as guarantors, that the debt had not been paid despite the floor warning, that the attempted follow-up had also been objected to, and that it had been decided to cancel the objection and collect 40% compensation.
The defendants requested the dismissal of the case by arguing that a limit mortgage was placed on the immovable in exchange for the loan granted, that the plaintiff bank initiated proceedings by converting the mortgage into money, that two proceedings could not be conducted together due to the same debt, sureties from the defendants M. M. He. and R. M. in their merged cases, the part of the contract regarding interest rates is left blank and the contract is undated, although the contract is made in foreign currency, the payments are TL. they requested that it be decided to determine that they were not in debt due to the follow-up initiated by claiming that a mortgage was granted at twice the rate of the loan taken out and that the contract was invalid.
Obtaining a mortgage receivable by the court in the case of the guarantor can be found in the collection where adiyen about not repeat itself in pursuit of the contract will void the contract that has been demonstrated in the interest rates, repayment plan, where the contractual interest rate is shown, the plaintiff would not ask for the reason that in the interest of the expert’s report and based on a valid objection by the principal debtor in terms of Gülsüm to open the case there are no legal benefits dismisses lawsuit; in terms of the other defendant sureties, the amount of the principal receivable for the cancellation of the appeal over 78.678.02 euros, provided that there is no repetition in the collection, is 69.360.11,4% interest per annum from the date of follow-up to the euro and 5% interest to the application of BSMV, 49.057.96.To the collection of compensation for denial of TRY, the plaintiffs in the combined case 15.555.86.The decision to determine that they do not owe YTL; The text of the Special Chamber has been corrupted exactly by the decision taken in the title section above; the court has decided to resist on previous grounds. Meryem Meltem Özdemir and Rezzan Mavitan, the plaintiffs of the defendant-united case, appealed the verdict.
The dispute that came before the General Assembly of Law through resistance; defendants-plaintiffs of the merged case M. M. He. and R. M.’s, the other defendant G. E.in spite of the fact that they signed the housing loan agreement used by them with the capacity of joint fiduciary guarantor, 45 of the IIK.it is collected at the point of whether there is an opportunity to apply the article in terms of the mentioned persons.
Within the scope of the material fact described in the Private Apartment Decommissioning decision above, it was considered useful to make explanations on the subject in order to better understand the legal relationship between the parties.
The plaintiff of the main case is G. From the bank and the defendants. E. with the “Housing Loan Agreement”, which is Decoded between 160.000.DM credit to defendant G. E. used by the defendant in addition to the principal of the borrower signed a loan agreement with the signing of this loan as a guarantee of dated 03.07.2000 “mortgage” with the Besiktas district belonging to the defendant, the obelisk Quarter, 1288 island, building No. 8 Kat 2 independent irtifakli parcel plaintiff in favour of the bank where the mortgage was established on the part of the other defendants G. Erlat and M. M. He.on the other hand, they signed the loan agreement in the capacity of joint debtor and joint guarantor, the defendant is the principal debtor G.E. the real estate registered in the name of the defendant guarantor M. On 27.03.2011. M. He.on the basis of the loan agreement of the plaintiff bank dated 10.01.2003, in which the mortgage was transferred obligatorily, the defendants were informed about Istanbul 14.2003/666 E of the Enforcement Directorate.with the numbered follow-up file, the defendant initiated the follow-up without notice, the sureties M. M. He. and R. M. upon the objection to this follow-up by the bank, a lawsuit was filed for the cancellation of the objection in hand; in addition, the plaintiff bank’s Istanbul 14.2003/179 E of the Enforcement Directorate. and 2003/1300 E.based on the loan agreement and mortgage deed from the numbered enforcement files, on the same date, the defendants G. E. and Mary M. He. about it, it initiated follow-ups by converting the mortgage into money, after which these follow-ups were canceled upon the complaint of the borrowers, after which the plaintiff bank was registered on 30.04.2004 at the Istanbul 10.2004/255 E of the Executive Directorate. with the numbered file, he started a follow-up about the same debtor defendants by converting the mortgage into money, this follow-up is still in trouble, whereupon the defendants of the main case R. M. with M. M. Ö’in Istanbul 1.2004/236 E. of the Consumer Court. with the numbered file, there is no dispute that the plaintiff of the main case has filed a lawsuit against the bank for determining that they are not debtors due to the loan agreement and follow-ups in question, and that these two cases have merged.
In the face of the material facts mentioned above, it would be useful to make a legal characterization of the subject.
487 of the abrogated Code of Obligations No. 818, which bears the title “Fiduciary surety”. in the same article; “If the guarantor has completed the performance of the debt together with the debtor as a joint guarantor and joint debtor or in such other capacity, the creditor may apply to the principal debtor and pursue proceedings against the guarantor before transferring the pledges to cash.
The provisions of this father are also applied to this kind of bail.” it has been said.
45 of the Execution and Bankruptcy Law No. 2004 (Jul), which bears the title “Receivables secured by pledge and mortgage”.item;
“Even if the debtor of a pledge-secured receivable is one of the persons subject to bankruptcy, the creditor can only follow up by converting the pledge into money. Jul. However, if the amount of the pledge is not enough to pay the debt, the creditor may pursue the remaining receivables through bankruptcy or foreclosure.
Jul-Jul 2499 In the follow-up of the pledged receivables arising from the housing finance defined in the first paragraph of Article 38 / A of the Capital Market Law and the pledged receivables of the Collective Housing Administration, the follow-up can be carried out by converting the pledge into money or applying for foreclosure.
The provision of Article 167 on policies and promissory notes and checks is reserved.
The mortgage interest rate and the annual installment receivables obtained, according to the capacity of the borrower, and intihab of creditors, foreclosure, or bankruptcy or foreclosure can be applied in their way.”
it contains the judgment.
The first.’s 45.the article that are arranged with respect to one of the original debtor obtained with foreclosure, “the Giving Pledge” about the way to follow up with general lien and foreclosure directly prevent the passage of the bankruptcy of the debtor a debt that has been supplied with, even though parties are subject to the creditor by way of foreclosure is capable alone to follow.
487 of the Code of Obligations No. 818.the item as described in the guarantor, the borrower and the guarantors with joint joint joint has undertaken the execution of the debt or any such other capacity as a debtor if the creditor to the principal debtor without recourse cash bond and hostages before proceedings against the guarantor may implement.
If the joint debtor-fiduciary guarantor has given the mortgage in an amount sufficient to cover the debt in such a way that it also covers its own surety, the creditor is only I.I.K.’s 45.according to the article, you can do the follow-up by converting the pledge into money. On the contrary, if the mortgage was granted only in favor of the borrower or for the debt in the loan agreement, the creditor I for the amount of the remaining debt that does not cover the guarantor’s own surety.I.K.’s 45.without the obligation to apply to Article 487 of the Code of Obligations.according to the article, it can follow up through general foreclosure with the registration of not repeating the collection for all receivables.
As a matter of fact, the same principle applies to the General Assembly of Law on 14.10.1972 day and 1972/215 E.- 841 K.; 18.04.2001 days and 2001/12-354 E.- 367 K.; 18.11.2009 day and 2009/19-426 E.- 543 K. it is also adopted in their numbered decisions.
When the concrete event is evaluated in the light of the explanations made above; defendant G.With the mortgage official deed dated 03.07.2000 and numbered 2904, E issued a mortgage on real estate only for the responsibility of the principal borrower, then the defendant of the main case M, one of the fiduciary guarantors of the mortgaged real estate. M. He.it is not a matter of dispute that the bank, the plaintiff of the original case, initiated enforcement proceedings against the original borrower and the joint guarantors, based on both the loan agreement and the mortgage deed, in which the mortgage was transferred as a liability.
As explained in detail above, there is no irregularity in the fact that the plaintiff bank has chosen both ways of pursuing the defendants who are guarantors. In this case, IK.nun 45.it cannot be said that the article should also be applied to sureties.
As such, it is appropriate for the court to resist this direction.
However, since no examination has been carried out by the Special Department in terms of the merits of the work, the file should be sent to the Special Department for examination in this direction.
S O N U Ç: For the reasons described above, resistance is appropriate, the defendant-counter plaintiffs M. M. He. and R. M. 13 of the file for the examination of the appeals of the attorney on the merits of the work. 30 of Law No. 6217 to BE SENT TO THE LEGAL DEPARTMENT. article 440 of the Code of Civil Procedure No. 1086, which is applied with reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100.in accordance with the article, a unanimous decision was made on 10.07.2013, with the way to correct the decision being open within 15 days.
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