12. Legal Department 2020/1059 E. , 2020/4586 K.
“Text Of Jurisprudence”
COURT : … District Court of Cassation
A decision by the court of justice in the regional date and number writing above temyizen this audit upon request by the borrower in the term work-related files have been sent to the apartment and rested for the audit report to file a claim held by a judge, and all the documents in the file is read and analysed, after it was thought that the nature of the business discussed :
Through encashment of the mortgage enforcement proceedings initiated by a creditor that is ilamli in owning the application execution by the complainant to the court, the appeal to authority as well as the account has not been communicated to the creditor and notice some times all of the addressees is removed by mortgages on real estate in the event that was launched following the cancellation of the mortgage has been removed and citing the tracking demanded by the debtor to the court of First Instance of the TMC 887. it is seen that the cancellation of the follow-up was decided on the grounds that no exemption notice was sent in accordance with the article, the appeal method was applied for by the creditor, the decision of the court of first instance was lifted with the acceptance of the appeal request by the District Court of Justice and the rejection of the complaint was decided.
The pledge of immovable property is regulated in Articles 850 and its continuation of the Turkish Civil Code No. 4721. Article 850 of the Law.according to the article, it is clearly stated that the pledge of immovable property can be established in the form of a mortgage or a mortgage debt note and an irat note, and cannot be established in any other way. As can be understood from this expression, a mortgage is a type of real estate pledge and is based on the legal relationship between the payment of a debt and the collateral of the real estate. A mortgage is one of the rights that carry out real estate. It is possible to allocate more than one real estate to the provision of a receivable. This can be achieved by establishing a collective pledge or by sharing the burden of the pledge.
855 of the Turkish Civil Code No. 4721 on the subject. in its article; “The pledge of multiple real estate for the same debt depends on the fact that the real estate belongs to the same owner or owners who are jointly responsible for the debt. In other cases where more than one real estate is pledged for the same receivable, it is indicated when establishing a pledge that each real estate constitutes a guarantee for the amount of the receivable. Unless there is an agreement to the contrary, the land registry office distributes the re’sen guarantee to each of the immovables at the rate of its value. it is said that “.
Located in the application and teaching, according to this definition, have more than one on a single immovable collateral to get all of each receivable (guarantee) to provide load being shared between immovable property and pledge established liens foreclosure cumulative (collective pledge – joint hostage, hostage along=Gesaptpfand) is called. (Bridged-limited-rights-… 1982- 1983.2.bass sh.291 et seq.)
The law clearly stated in the text, as this pledge to be established ownership of immovables on the type of the desired person belongs to the same” or “different people separate persons, so the owners of immovables immoveable, these individuals severally liable they desired to be secured debt” in their state can be established. If there are no such conditions, a collective pledge cannot be established.
The purpose of collective pledge is that the entire amount of a single receivable is secured by more than one real estate, and there is a legal obligation between pledges established on more than one real estate, and in this connection, it is dec for the creditor to collect the receivable. It should also be remembered that the pledged creditor can only obtain the collateral once, no matter how much it is, he will basically get it. Thus, if one of the pledged real estate is converted into money, if the pledged creditor has collected the receivable, the subject matter of the pledge on the other real estate will no longer remain and will expire. In short, the creditor may request the amount of the receivable once. The pledge right on all real estate must be terminated when the receivables are fully met.
873/3 of TMK No. 4721.according to the article “If a pledge has been established on more than one real estate for the same receivable, the creditor is obliged to demand that they be sold at the same time. However, the executive officer only sells as much as necessary” provision has been included. Accordingly, in the case of a collective pledge, if the mortgage has not been paid by the creditor on the day of receipt, he must demand that each of the real estate that has been established collectively (together with the pledge) be sold at the same time in accordance with the provision of the law described. This obligation is aimed at preventing arbitrary behavior by having the creditor sell the real estate he wants. (GCM.27.11.2002. T, 12-823/1020 K.)
Looking at the concrete case; ilamli follow-up was initiated by the creditor bank through the conversion of the mortgage into money about the real estate owners who inherited the real estate with the mortgage burden as a result of the privatization process with the main credit borrower cooperative. According to the examination of the official notes attached to the follow-up request; October 8499, 5 parcels owned by the credit borrower cooperative … A.Sh. it was seen that a mortgage with a value of TL 3,000,000.00 was established in the first order with a mortgage bond dated 31.01.2014 and numbered 2974 evmiye in favor of it, and it was understood that although the mortgages on real estate were collective mortgages, there was no follow-up against this real estate.
In this case, it is inappropriate for the District Court of Justice to decide to dismiss the complaint by removing the decision of the court of first instance and correcting the justification for the decision of the court of first instance in accordance with Article 353/1-b-2 of the HMK, 873/3 of the TMK. according to the article, the decision had to be overturned in order to decide on the cancellation of the follow-up on the grounds that there was no follow-up against all immovable properties subject to joint mortgages.
CONCLUSION : With the acceptance of the debtor’s appeals, the District Court of Justice 22. The date of the Law Department is 10/12/2019, 2019/720 E. – 2019/2502 K. 364/2 of the IIK amended by Law No. 5311 for the reasons set out above in its decision No. article 373/2 of HMK No. 6100, which must be applied by sending. in accordance with the articles (DETERIORATION), the refund of the fee received in advance upon request, the sending of the file to the District Court of Justice who made the decision, it was unanimously decided on 15/06/2020.
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