TC
High
General Assembly Law No. 2017/11-91, Decision No. 2018/924, April 18, 2018
UNEMPLOYMENT INSURANCE (GIVEN THAT THERE ARE THREE SEPARATE CREDIT CARDS INVOLVED IN THE LAWSUIT, IT IS NECESSARY TO ASSESS WHETHER THE PLAINTIFF HAD THE ACTIVE CAPACITY TO DECIDE WHICH CREDIT CARDS WERE LISTED IN THE INSURANCE POLICY ENTERED INTO BETWEEN THE PARTIES – Claim for Payment)
DAINI APTORATE (AS A LIENHOLDER, IT IS POSSIBLE FOR ANOTHER PERSON TO INSURANCE THEIR PROPERTY IN THE LIENHOLDER’S NAME—INSURANCE PROCEEDS MUST FIRST BE PAID TO THE LIENHOLDER OR EXPLICIT CONSENT MUST BE OBTAINED)
Following the conclusion of the trial regarding the “disarmament based on an insurance policy” case between the parties; an appeal was filed against the decision No. 2012/454 issued by the Commercial Court dismissing the case at the request of the plaintiff’s attorney, pursuant to the Ankara 6th Court’s decision dated September 26, 2012, and numbered 2011/657, The 11th Chamber of the Court of Appeals, in its decision No. 2013/9679 dated January 10, 2014, rendered a judgment in Case No. 2014/448.
>“…The plaintiff’s attorney argued that his client was insured under an Unemployment Insurance Policy linked to a credit card issued by the defendant company, that under this policy, the defendant company was obligated to pay the credit card debts in the event of unemployment, that the client was laid off on March 31, 2011, but that the defendant had made no payments; and, claiming these facts, sought the collection of 8,000.00 U.S. dollars, including advance interest, as of March 31, 2011, and filed the lawsuit.
The defendant’s attorney argued that the plaintiff lacked standing due to active hostility, stating that the policy beneficiary and Dain-i murtehin Akbank TAP were the rightful claimants, and thus requested dismissal of the case. T he attorney further contended that while the plaintiff’s personal expenses were covered under the policy, the expenses at issue in the lawsuit were not the plaintiff’s personal expenses.
The court evaluated all matters in the defense and complaint files within the scope of the policy, noting that the bank had reported the rightful owner’s conditional consent; however, the conditional consent was deemed invalid, and therefore the claim regarding the plaintiff’s standing was dismissed on the grounds that there was no active hostility or active opposition.
Th e plaintiff appealed the decision.
The case concerns a claim for payment based on an insurance policy.
The plaintiff submitted portions of account statements to the court, alleging that the credit card debt had been paid to Dain-i Murtehin Bank. In this case, the court—while it should have had the capacity to assess whether the written judgment was correct by considering whether the credit card debt paid by the plaintiff to Dain-i Murtehin Bank had been determined through an expert examination and whether it had been included in the case, and by taking into account the three separate loans charged to the credit cards or pertaining to the plaintiff’s property due to active hostility between the parties— it has requested that the ruling be overturned…”
As a result of the retrial, the case was dismissed, and the previous decision was overturned.
The General Assembly reviewed the law and, after determining that the appeal decision had been filed within the prescribed timeframe and that the documents in the case file had been reviewed, deliberated on the matter:
Decision: The case concerns a credit card claim based on an unemployment insurance policy.
Th e plaintiff’s attorney argued that his client held a credit card unemployment insurance policy with the defendant company, that the defendant was obligated to pay the credit card debts, that his client had become unemployed in accordance with this policy, that he was laid off on March 31, 2011, but that the defendant had not made any payments, that the plaintiff reserves the right to claim additional entitlements, and that the plaintiff filed this lawsuit to recover the debt of 8,000 U.S. dollars, plus interest, as of March 31, 2011.
The defendant’s attorney requested dismissal of the case, arguing that the court lacked jurisdiction, that the plaintiff lacked standing due to active hostility (legal status), and that the policy beneficiary and Dain-i apostate Akbank TAP were the rightful claimants. The attorney further argued that while the plaintiff’s personal expenses were covered under the policy, the expenses at issue in the case were not the plaintiff’s personal expenses.
Although the bank, as the holder of the “Dain-i apostate” right, had granted conditional approval to the plaintiff, the court ruled to dismiss the case on the grounds that the approval was invalid; consequently, it was concluded that the plaintiff lacked legal standing due to active hostility.
Upon the plaintiff’s attorney’s appeal, the Special Chamber overturned the decision for the reasons stated in the heading section above.
First, let us address the reasoning behind the court’s decision: Aside from the fact that the bank is not a party to the lawsuit, it is not correct under case law regarding the owner of the claims at issue that the lawsuit and proceedings involving the rights holder (rights arising from the right to pledge) could affect a situation where the right to pledge is not granted to the owner of that right. The pledging of bank loans effectively means a reset of the claims for the creditor; the temporary relinquishment of the right to pledge is not a valid reason. It was ruled that the objection was valid on the grounds that the right to pledge would serve as security for the bank’s future claims, and that the temporary reset of the debt status would not affect the outcome.
The plaintiff’s attorney filed an appeal against the decision on the objection.
A dispute arising from a violation of law before the General Assembly; the court determines whether the credit card debts at issue in the case were paid by the plaintiff to the Dain-i-murtehin bank and condemns the plaintiff’s active hostility regarding the credit cards as set forth in the insurance policy arranged between the parties.
The credit card unemployment insurance at issue in the case was arranged to guarantee the payment of credit card debt up to 10,000.00 TL in the event of unemployment. Article 3.1 of the “General Terms and Conditions of Debt Payment Insurance” in the credit card unemployment insurance policy stated: “In the event the insured becomes unemployed, payments required under the contract will be covered under the unemployment guarantee.”
Meanwhile, it is worth explaining what “Dain-i mürtahin” means. Dain-i mürtahin means “secured creditor.” The Dain-i mürtahin is the natural or legal person specified in the policy who is the first-degree creditor entitled to the indemnity to be paid due to the loan or credit provided to the insured. Since the secured creditor (dain-i mürtahin) is listed as the beneficiary of the insurance—that is, the insured—the right to claim insurance compensation and file a lawsuit in the event of a loss belongs primarily to the secured creditor (Ulaş, I.: Applied Property Insurance Law, Ankara 2012, p. 176).
In light of these explanations, since the lawsuit was dismissed by the local court on the grounds of “active adversarial status,” it would be appropriate to focus primarily on the concept of “status” in the case to resolve the dispute.
Standing refers to the relationship between the subject matter of the lawsuit and the parties to the lawsuit. Although the individuals referred to as the plaintiff and defendant in the complaint are parties to the lawsuit according to the theory of parties, this does not necessarily mean that these individuals possess the status of “party.” The status of a party is not a prerequisite for the lawsuit. However, since capacity is a matter of objection, the judge, as with other objections, will automatically view it with suspicion as long as the judge can ascertain the party’s capacity from the case file (Pekcanitez, H./Atalay, O./Özekes, M.: Civil Procedure Law, Ankara 2012, pp. 248–249).
Following this general explanation of the status, it is necessary to examine the relevant provisions of the Turkish Commercial Code No. 6762, which was in force at the time the incident occurred, and the relevant provisions of the Turkish Civil Code No. 4721.
The repealed Turkish Commercial Code No. 6762 contains the following provision in Article 1269, titled “True Owner”: “To secure a property whose value is measurable in monetary terms against specific risks, if a pledge is granted in the name of the creditor or the representative responsible for the safekeeping of the property against the owner, tenant, commission agent, or persons who actually derive benefit from the property during its storage, or their legal representatives, such interest may be insured.”
Article 1270 covers insurance taken out in the name and on behalf of another person: “A person may take out insurance in the name and on behalf of another person; however, if that person does not have the authority to represent the person in whose name and on whose behalf the transaction is conducted, they shall be personally liable for the insurance premium.”
A person who has entered into an insurance contract in their own name is entitled to the benefits of the insurance if they give their consent before or after the risk materializes.
Unless otherwise specified in the terms of the contract, an insurance contract entered into in the name and on behalf of another person is deemed to have been entered into in the name and on behalf of the person who arranged it.
It contains the following provisions.
The first paragraph of Article 879 of the Turkish Civil Code No. 4721, titled “Right to Insurance Indemnity,” reads as follows: “Insurance indemnity, that is, the due amount, may be paid only with the consent of all secured creditors.”
When the aforementioned legal provisions are considered together, pursuant to Article 1270 of the same Code, in accordance with Article 1269, the person who has taken a pledge on the property may insure their interest in that property in their own name. According to the provision of the article, it is also possible for another person to insure the pledged property for the account and benefit of the pledgee. Pursuant to Article 4721 of the Turkish Civil Code, the insurance indemnity must first be paid to the holder of the right of pledge or explicit consent must be obtained.
In fact, the same points are also emphasized in the General Assembly’s laws dated September 28, 2012, numbered 2012/17-394 E. and 2012/643 K.
As for the specific dispute, it is stated that Akbank TAP did not file a lawsuit regarding the credit card unemployment insurance document, but that its branch is involved.
The plaintiff claims that the credit card debt was paid to Dain-i Murtehin Bank and that certain account statements were submitted to the court file. I n this case, the court will examine whether the credit card debt was paid by the plaintiff to Dain-i Murtehin Bank and will assess whether the credit card debt—which is being evaluated in three separate matters between the parties—is included in the lawsuit, or whether the plaintiff’s credit card insurance policy contains a clause regarding “active hostility” (status). In other words, in the context of the credit card payments made by the plaintiff, even if Dain-i Murtehin Bank does not consent to the case outside of court, the court must accept that the plaintiff holds the status of “active party” in the case.
In this case, for the reasons explained above, the decision to overturn the special ruling issued by the General Assembly must be upheld; opposing the previous decision is contrary to procedure and the law.
Therefore, the decision to uphold the objection must be overturned.
Conclusion:
On April 18, 2018, by unanimous vote, it was decided that the decision to oppose the plaintiff’s attorney’s appeal was in violation of Article 429 of the Civil Procedure Code No. 1086, as applied in conjunction with Article 30 of Law No. 6217 and the Transitional Article 3 of the Civil Procedure Code No. 6100, and that the avenue for correcting the decision regarding the reimbursement of appeal costs to the plaintiff, if requested, has been closed.