EN SUPREME COURT
Law Office
Based on: 2015/18400
The Verdict: 2016/10603
Decision Date: 14.06.2016
THE PROCESS OF ANNOUNCING THE OBJECTION – DETERMINATION OF THE MINIMUM REQUIREMENT FOR THE DETERMINATION OF THE COLLECTIONS MADE IN THE NON-FOLLOW-UP COLLECTIONS SPECIFIED BY THE APPLICANT BANK BY THE APPLICANT BANK AND DETERMINATION OF THE AMOUNT OF RECEIVABLES THAT CAN BE REQUESTED FROM THE HEIRS – STATUTE OF LIMITATIONS
SUMMARY: The plaintiff bank’s receivables from the main debtor as of the date of death of the deceased of the defendants were determined by an expert report from the bank records, taking into account the fact that the inheritor is the guarantor, and the amount of receivables that can be requested from the heirs was determined by deducting the collections made by the plaintiff bank in the non-follow-up transactions specified in the petitions. Although it should have been determined, it was not considered correct to make a decision with incomplete examination.
(4721 SK Md. 605)
Trial: At the end of the trial of the case of cancellation of the appeal between the parties, the file was examined on appeal by the defendant’s attorneys, the need for the acceptance of the case was discussed and decided within the decision period for the reasons written in the Decrees.
Dec paying the loans, the plaintiff’s attorney stated that the inheritor of the defendant borrowers … was the fiduciary guarantor in the general loan agreements dated 14/04/2008, 16/04/2008 and 16/07/2008 between the non-litigation and the client bank, and that the non-litigation company took out a mortgage due to non-payment of the loans. Stating that the defendants were followed up on the remaining balance through the Safranbolu Enforcement Directorate’s file numbered 2011/1176, but the prosecution was stopped upon the defendants’ objection, he demanded and sued for the cancellation of the objections and paying 40% executive denial compensation to the defendants.
The lawyer of the defendants, although his clients did not reject the inheritance within the legal period, claimed that the inheritance fell due to the fact that the terek is the debtor, the inheritor did not have a driving license when signing the loan agreements as a guarantor, the debt of the inheritor was calculated on the date of death and not on the date of settlement, Art. 630. in accordance with the article, as a result of the liquidation of the inheritance according to the bankruptcy provisions, his clients will be responsible for the debt in the proportion of liquidation shares and requested the dismissal of the case.
As a result of the court trial, the report received from the Forensic Medicine Institution in terms of verb license as of the dates when the deceased person signed the loan agreements stated that there were no medical findings or documents that would detect any symptoms in the person who left the inheritance on 14/04/2008, 16/04/2008 and 16/07/2008, when the loan agreements were signed, the inheritor had a verb license on the date the loan agreements were signed, 2.
In the received report, various banks and organizations were written to determine whether the inheritance had been received and whether the inheritance was in debt, the determination of receivables and debts on the date of death and an expert report were obtained, the total assets of the inheritor as of the date of death were 88.727,84 TL, the total debt was 135.871,14 TL, the inheritance was submerged in debt, but upon the death of the inheritor, the defendants applied to the Ankara Tax Office Directorate and filed an inheritance and transfer tax return, it was stated that the inheritance fell upon the emergence of the debt situation arising from the surety of the inheritor, and the defendants acted within the scope of the property of the estate immediately after the death of the inheritor.
Supreme Court 2. 2012/17092 E of the Law Office.-2013/9247 K. in his numbered decision; “… Although the abandonment is submerged in debt; 610/2 of the Turkish Civil Code. as explained in the article, the heir who is involved in the transfer transactions, hides the transfer or is the owner cannot refuse the inheritance.” This case is the 2nd of the TMK. it is contrary to the principle of good faith stipulated in the article, and the fact that the defendants have filed inheritance and transfer tax returns in this case, it has been argued that the transaction was managed by the defendants until the case was opened.
The case was accepted and the defendants’ objection to the Safranbolu Enforcement Directorate’s file numbered 2011/1176 was canceled by accepting that the case law of Law Firms is in this direction and that heirs acting within the scope of tereke ownership cannot go to the decision of abandonment of the inheritance upon the occurrence of a debt related to tereke later. it was decided to continue the trial and to collect from the defendants and pay to the plaintiff the 40% performance denial compensation, which will be calculated on the actual amount of the receivable due to the liquidity of the receivable.
The decision was made and the verdict was appealed by the defendant’s attorneys.
1- On the grounds of the articles in the file, the evidence and compelling reasons on which the decision was based, there was no error in the evaluation of the evidence, it was necessary to decide to reject the other appeals of the defendant’s attorneys that fall outside the scope of the following paragraph.
2- The receivables of the plaintiff bank from the original debtor as of the date of death of the deceased defendant are determined by an expert witness through the bank records, taking into account that the inheritor is the guarantor, and the amount of receivables that can be requested from the heirs is determined after deducting the collections made by the plaintiff bank in the out-of-court transactions specified in the petitions. Although it should have been determined, it was not considered correct to make a written decision with incomplete examination.
Conclusion: It was unanimously decided on 14.06.2016 to reject the other appeals of the defendant’s attorneys for the reasons explained in paragraph (1) above, to overturn the judgment in favor of the defendants for the reasons explained in paragraph (2), and to refund the advance fee upon request.