PRESCRIPTION PERIOD FOR CANCELLATION OF DISPOSALS
There is not a statute of limitations. But a grace period in cancellation of disposals cases.
According to Article 278 et seq. of the EBL, the acceptance. Of the nullity of the dispositions made by the debtor. “Without consideration” or “in a state of insolvency” covers the dispositions. Made within the period from the emergence. Of the debtor’s state of insolvency or the opening.
Of his bankruptcy until the disposition that caused. The debtor’s insolvency or bankruptcy. However, this period cannot exceed 2 years.
According to Article 280 of the BEC. The period of forfeiture for filing a lawsuit. Against the disposals made by the debtor. With the intention to harm the crediton. In cases where the savings transaction is known by the creditor. Or there are clear. Indications that require it to be known. A cancellation lawsuit can be filed. Against the debtor within five years from this date.
After the five-year prescriptive period. Has elapsed from the date of the disposition requested to be cancelled, the cancellation. Of the disposition filed pursuant to Art. 277 et seq. should be rejected…(17. HD. 11.04.2017. T. 11746/3952)
…TCO Art. 19 of the TCO, in the lawsuits filed for the cancellation of the collusive transaction. The plaintiff is not required to file an enforcement proceeding. And since the five-year prescriptive period has elapsed. This lawsuit cannot be dismissed pursuant to Art. 284, it cannot be decided to dismiss this case – In case the plaintiff proves his claim, considering that the claim is not related to the immovable property, but to the collection of the receivable, Art. 283/1, 2 should be applied by analogy and a ruling should be made in terms of the plaintiff’s ability to request the seizure and sale of immovables “without the need for cancellation and registration”…(17. HD. 11.09.2018. T. 2876/7629)
COURT OF JURISDICTION IN CANCELLATION OF DISPOSITION CASES
The Civil Courts of First Instance, which is the court with general jurisdiction pursuant to Article 281 of the EBL, shall hear the cancellation of disposals. A common misconception is that if the disposition subject to the lawsuit is based on a commercial relationship.
The lawsuit is filed in the Commercial Court of First Instance. However, regardless of the legal nature of the disposition subject to the lawsuit, the competent court is the Civil Court of First Instance.
As emphasised, in the cancellation of the disposition lawsuit or, as in the concrete case, in the lawsuits filed pursuant to Article 19 of the TCO and the application of the EBL by analogy, the commercial purchase and sale or commercial or general loan agreements that constitute bank receivables between the creditor and the debtor parties cannot be taken into consideration in determining the duty.
Neither the action for cancellation of the disposition. Nor the action for collusion requesting the application of Article 283 of the EBL by analogy. Pursuant to Article 19 of the TCO shall fall within the jurisdiction. Of the Civil Court of First Instance. With general jurisdiction pursuant. To Article 2 of the CCP No. 6100, since. They have the characteristics of absolute or relative commercial litigation specified in Article 4 of the TCC (YHGK-K.2016/129).
You can access our other article examples and petition examples by clicking here.