Summary:
Pursuant to Article 149/b, a debtor who has mortgaged their real estate solely for the purpose of securing a loan may be subject to mortgage enforcement proceedings against the cooperative. While enforcement proceedings may be initiated against third parties who have secured the debt through mutual guarantee via general attachment, mortgage enforcement proceedings cannot be initiated against them.
TC
Supreme
Law Office
Article No: 2014/22280
Decision No: 2014/22130
Date: 9/23/2014
Upon the court issuing its written decision on the date and time specified above, the files related to this audit requested by the debtors were sent from the district to the office for the preparation of an audit report and for the judge to file a lawsuit, read and examine all the documents in the file, and discuss the matter considering its nature:
Although other objections are unfounded;
the main debtor and creditor have the property held at SS Ziraat Bank by way of mortgage. Coop. Approximately 149 EBL/b non-judicial cooperative members are being transferred by way of mortgage enforcement in accordance with example 9. Upon notification to the debtors, in the pursuit of a payment order, the debtor’s lawyers, the Enforcement Office, in the event of a dispute against the legal entities of any credit cooperative,The Editor, in the promissory notes dated June 24, 2002, claims that the principal debtor, guarantor, and cooperative are jointly liable for the debt and are therefore obligated to pursue the matter.
It was deemed appropriate to pursue the matter on appeal. Upon the creditor’s representative’s request to withdraw the objection in the enforcement court, it was determined that the debtors are personally liable for the debt. and that they are personally liable for the debt outside of their capacity as cooperative members, based on their signatures as joint and partial debtors and guarantors under the letter of commitment. It is understood that the case was accepted and the objection was lifted.
In the specific case, the Amasya 1 plot of land was contracted between the bankrupt cooperative and the creditor on 24.06.2002. The promissory note dated 24.06.2002 and numbered 08506 was signed by a notary public, and this loan debt was paid. B.., F.. E.., A.. O.., A.. K.., and H.. G.., as joint and several guarantors, signed a credit commitment note dated August 20, 2002, based on the debt stock between the parties.
A mortgage was established in favor of the creditor on the immovable property located in parcel no. 7 of the village of Kizsek, registered in the name of the cooperative, with the mortgage contract dated 26.07.2000 and numbered 2048, which was created on 13.06.2001 and registered with the Land Registry Directorate. The mortgage debtor is the cooperative’s principal creditor, together with the cooperative members who are guarantors of the debt, and it is a mortgage that will be pursued solely in the capacity of a cooperative member. It is understood that QM, O.. K.., F.. İ.., and A.. G.. also indicate the debtor in the proceedings.
Pursuant to Article 149/b of the Enforcement and Bankruptcy Law, a debtor who has mortgaged their immovable property due to a loan taken in the proceedings may be subject to mortgage enforcement against the cooperative. Although third parties who are guarantors of the debt may be pursued through general seizure, they cannot be pursued through mortgage enforcement (Ali Cem Budak, Enforcement through Conversion of Mortgage into Cash, Istanbul 2008, p. 112). Furthermore, those who are not guarantors but are pursued solely because of their cooperative membership do not have the status of debtors.
In this case, the court should have rejected the request to dismiss the objection for debtors other than the Limited Company Kızseki Village Agricultural Development Cooperative, and the written ruling is therefore erroneous.
CONCLUSION:
For the reasons stated above, the court’s decision to partially accept the debtors’ objections is pursuant to Articles 366 of the Enforcement and Bankruptcy Code and 428 of the Code of Civil Procedure (REGARDING REVERSAL), the court’s decision to partially accept the objections of the debtors, to refund the fee previously collected upon request, and to allow for a correction of the decision within 10 days of its notification, was unanimously decided on September 23, 2014.