Although it is claimed that the promissory notes forming the basis of the claim in this case were “issued in reliance on cash amounts delivered in person,” given the significant amounts involved in the notes,
the delivery of the money in this manner does not appear consistent with the ordinary course of life.
In the event of a “personal application to the defendant-debtor,” the court will first examine the plaintiff’s…
profession and financial situation to determine whether they are capable of supporting themselves.
Regarding the cash amounts specified in the promissory notes at issue in the debt claim, and subsequently,
considering that the defendant-debtor is a partner in a company not party to the contract
The company’s partners must obtain commercial registry records for the case file,
To determine the defendant-debtor’s position within the company; conduct inquiries with relevant banks
To ascertain whether there were any cash inflows in the name of the individual or company in question
During the periods when the promissory notes forming the basis of the claim were issued; and
Based on the findings, to determine whether the plaintiff’s claim is valid;
The decision rendered following the trial regarding the action for the annulment of the transaction between the parties
The court rejected the objection raised by the defendant E.Ş.’s attorney, based on the grounds stated in the decision.
An appeal was filed by the defendant E.Ş.’s attorney; the documents in the file were reviewed, and the necessary procedures were carried out.
The following points were taken into consideration:
– DECISION –
The plaintiff’s attorney stated that the plaintiff is a creditor of the defendant E.Ş. and that enforcement proceedings will continue.
Legal proceedings were initiated against the defendant-debtor; no assets registered in the defendant-debtor’s name were found, and
had transferred his 792 shares in the company A.Halı San ve Tic. AŞ, which was registered in his own name.
He had approached his brother E.Ş., the other defendant, with the intent to conceal his assets, and for this reason, he filed the lawsuit.
Annulment of the transaction between the defendants.
The attorney for the defendant E.Ş. requested that the case be dismissed.
Taking into account the evidence gathered by the court and the entire case file, the court accepted the case, annulled the share transfer transaction dated August 28, 2013, between the defendants, and granted the plaintiff mandatory enforcement authority regarding these annulled shares from the Bakırköy 6th Land Registry.
The Enforcement Directorate’s case file No. 2013/14638 regarding the shares subject to this annulment,
was appealed by the defendant E.Ş.’s attorney within the appeal period.
The 17th Criminal Chamber of the Gaziantep Regional Court of Appeal dismissed the appeal on its merits.
The Regional Court of Appeal’s decision was appealed by the attorney for the defendant E.Ş.
1- Based on the information and documents in the file, the evidence gathered, and the supplementary records dated October 30, 2014,
it constitutes a provisional bankruptcy certificate pursuant to Article 105 of the Enforcement and Bankruptcy Law.
A decision must also be rendered to dismiss the defendant E.Ş.’s other objections, which have been found to be baseless.
Except for the provision stated below.
2- This case concerns an action for the annulment of a disposition.
It is a case filed pursuant to Articles 277 et seq. of the Enforcement and Bankruptcy Code. A lawsuit for the annulment of a liquidation transaction is a lawsuit filed by a creditor who has suffered harm from such a transaction.
An act committed by the debtor with the intent to cause harm to the creditor,
Aims to ensure the protection of property and rights removed from the debtor’s estate or their equivalent value,
Is returned to the debtor’s estate, thereby enabling the collection of the debt.
The purpose of this type of lawsuit filed by a creditor is to complete the enforcement proceedings.
If the claim is proven, the disposition is not deemed entirely invalid. Instead, it is accepted that the property in question never left the debtor’s estate, and the creditor may ensure that the property is seized and sold.
Their aim is to collect their claims from the proceeds of the sale. Therefore, the cancellation of the sale is merely a means to an end.
To provide the creditor who filed this application with the opportunity
To file a lawsuit through compulsory enforcement to collect their claims if the debtor acts with the intent to harm them.
Considering the stated purpose and the benefit to be gained from the outcome of the case, an application must be filed to initiate a lawsuit for the cancellation of the decision.
For the objection to be considered, the following conditions must be met: the creditor must have a genuine claim against the debtor, and the amount of the debt must be determined.
The debt must have arisen prior to the assignment, the enforcement proceeding against the debtor must be final and in effect, and
a bankruptcy certificate must have been issued against the debtor.
In this case, the source of the debt is a promissory note dated June 13, 2013, in the amount of 485,000 TL, with a maturity date of July 5, 2013.
and a promissory note dated June 12, 2013, in the amount of 250,000 TL, maturing on September 15, 2013.
and the aforementioned disposition occurred after the issuance dates of the promissory notes in question.
On August 28, 2013; the lawsuit was filed on February 6, 2018, within the 5-year statute of limitations period.
The enforcement proceedings against the debtor have become final, and a seizure record dated October 30, 2014, has been issued.
Pursuant to Article 105 of the Enforcement and Bankruptcy Law, this document is deemed equivalent to a provisional bankruptcy certificate.
Defendant E.Ş. argued that the plaintiff’s claim was not a genuine debt, while the plaintiff’s attorney…
argued that the promissory notes forming the basis of the claim were issued in exchange for a cash loan.
Therefore, the condition that “the creditor has a genuine claim against the debtor” must be examined.
Among the listed conditions, the most critical one for resolving this case is present.
If it is claimed that the party holding the asset does not owe a genuine debt to the creditor, then
First, the debtor status of the asset holder must be determined. Therefore, an investigation is required.
The third-party defendant’s defense regarding the claim that the debt is not genuine and that a fraudulent transaction exists.
Otherwise, the situation arises by failing to make the necessary effort—either by reaching an agreement with the creditor or by not objecting to enforcement proceedings on the grounds that the creditor has already gone bankrupt.
Therefore, failing to make the necessary effort to object to enforcement proceedings and, in cases where a stay of proceedings is not possible upon objection, failing to file a declaratory action against enforcement proceedings based on negotiable instruments.
If possible, the debtor’s conduct in this matter may result in harm to third parties who have acquired property from the debtor.
Suffering harm through judicial intervention is unacceptable. Even in the following situations:
When a person who is not the debtor transfers an asset from their estate to a bona fide third party during the proceedings.
And subsequently, through fraudulent collusion with others, issues an old promissory note to these individuals.
The indirect recovery of transferred assets through an action for rescission in such a scenario
may be considered a possibility. Of course, these are not the situations intended by the law. In actions for the rescission of a transaction,
while the creditor is given the opportunity to collect the debt, there are also important points that must not be overlooked.
Here, the objective is not the formal existence of the creditor’s claim but its actual validity. The principles summarized above regarding the annulment of a transaction also apply in the same manner.
This has been adopted in the Civil Law decisions of the General Assembly of the Supreme Court of Appeals,
Case No. 2013/17-224, Decision No. 2013/1478, and Case No. 2014/17-843, Decision No.
2014/433.
It has been argued that the documents forming the basis of the case do not pertain to any of the alleged matters.
Given the high value of the amounts in question, these payments were made based on cash amounts delivered personally.
The personal delivery of cash to the defendant debtor appears consistent with the normal course of life. To confirm this situation:
The first step is to investigate the plaintiff SA’s profession and financial situation.
A situation arises to determine whether they are in a position to provide the funds.
The amounts specified in the promissory notes forming the basis of the case; subsequently, taking into account that the defendant debtor is a partner in the third-party company A.Halı ve San Tic. AŞ…
By obtaining commercial registry records and determining the individual’s position within the company,
and by contacting the relevant banks to investigate whether any cash inflows occurred,
specifically those issued in the name of the individual or the company on the dates the promissory notes were issued.
The presentation of evidence supporting the claim and the determination of whether the plaintiff’s claim is valid based on the findings.
However, it is deemed inappropriate to render a decision based on an incomplete investigation and review.
CONCLUSION:
For the reasons explained in paragraph (1) above, the defendant E.Ş.’s attorney’s other appeals
For the reasons explained in paragraph (2) above, the defendant E.Ş.’s attorney’s objections are rejected;
Have been accepted, and pursuant to Article 373/1 of the Code of Civil Procedure, the decision of the Regional Court of Appeal
The case file is returned to the court of first instance; a copy of the decision is also sent.
To be sent to the 17th Civil Chamber of the Gaziantep Regional Court of Appeal; and the advance fee
shall be refunded to the defendant E.Ş., who filed the appeal, upon request. This decision was adopted unanimously.
June 16, 2021.
4th Civil Chamber, June 16, 2021, Case No. 1143, Decision No. 3147