TC
HIGH
GENERAL ASSEMBLY
NUMBER: 12/2017-1140
DECISION NO: 2018/563
DATE OF DECISION: 3/28/2018
THE BOND IS ISSUED AS A GUARANTEE BONDS, AND ONLY THE WORDS “IT IS A GUARANTEE BONDS” ARE WRITTEN ON THE FRONT AND BACK OF THE BOND However, the fact that the nature of the guarantee bond is not specified does not affect the quality of the follow-up and foreign exchange.
Following the trial on the “objection to debt” claim between the parties, the Ankara Western Enforcement (Civil) Court, upon the request of the creditor’s attorney conducting the appeal review against Decision No. 12, annulled the appeal and the enforcement, with its decision dated 08.05.2014 and numbered 2013/873 E. cancellation of the appeal and cancellation of the enforcement, with its decision numbered 2014/159 K., and the Supreme Court of Appeals General Assembly of Civil Law, with its decision dated 08.05.2014 and numbered 11364/2014 E., 2014/13598 K.,
(… Enforcement proceedings were initiated against the debtor based on foreign currency bills of exchange through attachment, and the debtor applied to the enforcement court within the time limit, requesting that the proceedings be canceled on the grounds that the basis of the proceedings was a security bill. The fact that the promissory note on which the proceedings were based contained the phrase “the security is a security” does not, according to the established case law of our Chamber, require the acceptance that the promissory note itself is a security bond unless the nature of the security is explained.
In the specific case, the debtor’s failure to submit the written document required under Article 169/a of the Enforcement and Bankruptcy Code regarding the promissory note and objections to the debt, which are valid under enforcement law, and the creditor’s refusal to accept the documents submitted to the file relating to the sale of the vehicle, resulted in the court’s decision to accept rather than reject the case being deemed inappropriate (…)
Following the retrial, the court upheld the previous decision with justification and returned the file.
Upon review by the General Assembly of the Court of Appeals, it was understood that an objection had been filed against the decision to uphold the previous ruling. After reviewing the documents in the file, the following was discussed:
DECISION: The case concerns an objection to the debt.
The mortgagor stated that the existing share certificate was subject to enforcement and interpretation, that a verbal agreement had been made with the creditor on 04.08.2013 regarding the purchase of a tractor, that the price of the tractor was 13,500.00 TL, which was paid on 20.10.2013, furthermore, that the official traffic procedures for the tractor had been completed by this date, making it ready for sale, that they had gone to a notary to carry out the transfer procedure by mutual agreement and had the seizure procedure carried out,
and that they understood that the tractor had been sold, that the property still belonged to him, that it was not possible for him to pay the price of a vehicle that he could not transfer, that he had no debt, that apart from the purchase of the tractor … and that there was no other commercial relationship between them, requesting that the proceedings be dismissed.
Th bond attorney argues that the mere presence of the phrase “it is a security bond” on the back of the creditor’s document does not affect its sufficiency, based solely on the following grounds:
According to the Supreme Court’s case law, in order to address the question of why a promissory note or security note given as collateral or equity collateral for a bond must be shown in a separate document, it is necessary to determine the requirement to track the promissory notes subject to collateral, but by arguing that your client’s promissory note was issued as an equivalent to the monetary debt owed to the creditor, not the plaintiff, that the power of attorney dated 19.09.2013 was a power of attorney granted to İhsan Yılmaz to sell the tractor at any price and under any conditions, that the power of attorney was not specified in the power of attorney,
and that the plaintiff was not a party to the power of attorney, requesting that, if the complaint is dismissed, he be awarded damages of not less than 20% of his claim.
The Local Court wrote the phrase “guarantee is guarantee” on the back of the bill of exchange subject to enforcement and decided to accept the complaint and cancel the enforcement on the grounds that the bill of exchange subject to enforcement did not contain an unconditional promise to pay a certain amount and that the existence of the claim required a trial.
Upon the objection of the creditor’s representative, the decision was overturned by the Special Chamber Presidency on the grounds stated in the land registry record mentioned above.
Article 776 of the Turkish Commercial Code No. 6102/B explicitly states that “the unconditional promise to pay a specific amount…” requires the phrase “it is a security bond” to indicate that a bond cannot be unconditional, that a claim must exist, which will only become apparent as a result of the proceedings, and that the instrument is not a guarantee instrument, the creditor cannot invoke the guarantee on the instrument on the grounds that the decision was rendered without this instrument, even if the phrase “it is a guarantee instrument” appears on the instrument.
The creditor’s representative objected to the decision to resist.
The path of resistance coming from the front line of the dispute with the General Assembly of the Law; in bonds, the fact that the nature of the act of abstraction (abstraction) will not be eliminated in the event of “lack of clarity regarding the scope” of the “share certificate collateral” record, whether it will be valid in the draft law according to the conclusion reached here, and that evidence put forward against such a claim must be proven on the points gathered in this draft law.
First, it should be determined whether the document based on the principle of endorsement has the nature of a foreign exchange certificate.
According to Article 776 of the Turkish Commercial Code No. 6102, the phrase “bond” or “negotiable instrument” in the text of the instrument, if the instrument is in a language other than Turkish, the phrase “promissory note” used as collateral for bonds or bills of exchange in that language, an unconditional promise to pay a specific amount, the maturity date, the place of payment, to whom or to whose order it is to be paid, the name, date, and place, and the signature of the issuer must be present.
In this context, certainty (definiteness) is one of the main elements of negotiable instruments. Considering their ability to be traded, all elements of a bond must be clear, unambiguous, and distinct, leaving no room for interpretation. As Öztan states, the issuance of bills of exchange and promissory notes is a “non-conditional” transaction (Öztan, F.: Kıymetli Evrak Hukuku [Law of Negotiable Instruments], 2nd ed., Ankara 1997, p. 451).
Indeed, after stating in Article 777 of the Turkish Commercial Code that a bill that does not contain mandatory elements is not a bill, it has filled the gaps that may arise by introducing a precautionary rule regarding the maturity date, payment date, and place, thus supporting the principle of certainty. While it is accepted that records such as notice, price, interest, protest exemption, and mandatory authority may be included in the bill, the inclusion of records that eliminate the capacity of a member or a specific person due to illness eliminates its capacity as a negotiable instrument.
In light of the above explanations and legal regulations, when the specific case is evaluated;
The promissory note dated October 20, 2013, with a maturity date of 13,500.00 TL, has the phrase “the bond is collateral” on the back. The presence of a collateral note on the bond does not eliminate the mandatory nature of the bond, as the nature of the collateral is not specified. In order to accept that the bond was issued for collateral purposes, it must be proven that the item presented as collateral is a collateral note with writing on the front or back of the bond or a separate document (İİK. md. 169/a). Indeed, the General Assembly of the Court of Cassation, in its decisions dated March 14, 2001, numbered 2001/12-233 E., 2001/257 K.; June 20, 2001, numbered 2001/12-496 E., 2001/534 K.; February 24, 2010, No. 2010/19-67 E., 2010/99 K.
Consequently, while the local court and the General Assembly of Urban Planning are obliged to comply with the decision of the Special Chamber to terminate the General Assembly, appealing against the previous decision on erroneous grounds is contrary to procedure and law.
Therefore, the decision to resist must be overturned.
CONCLUSION:
It was unanimously decided on March 28, 2018, that the decision to resist the acceptance of the objections by the creditor’s representative should be OVERTURNED for the reasons explained in the Special Chamber’s overturning decision, that the objection advance fee should be refunded to the payer upon request, and that the decision should be closed through rectification.