T.C. THE DECISION OF THE SUPREME COURT
12. law office
Base. 2016/2889
Decision. 2016/5851
T. 1.3.2016
• REQUEST CANCELLATION OF THE FOLLOW-UP
(It is Not Possible to Follow–Up by Sending an Executive Order by Cashing the Mortgage to the Owner of the Mortgage, Complaining That There is No Notification of a Warning to Open an Account in Accordance with the Method and No Notification Conditions have Been Formed – The Rejection of the Request Is Erroneous)
• NOTIFICATION OF THE ACCOUNT FLOOR (Whether the Notification Made is Irregular and Will Not Have Legal Consequences – There is No Notification of the Account Floor Warning in Accordance with the Method and Notification Conditions have Not been Formed, It is Also Impossible to Follow Up about the Complaining Mortgage Owner)
• FOLLOW-UP BY CASHING OUT THE MORTGAGE (No Follow–up Can be Made by Sending an Executive Order by Cashing Out the Mortgage to the Mortgage Owner Complaining That There is No Notification of Account Floor Warning in Accordance with the Cancellation Request – Method and Therefore No Conditions for an Exemption Warning Have Been Created)
• IRREGULAR NOTIFICATION (The Notification Issued on Behalf of the Mortgage Borrower and Containing the Notice is Made With the Explanation of the Brother Sitting Together in the Same Residence with His Signature – It is Irregular Because The Notification Was Made Directly to His Brother Living Under the Same Roof Without Determining Whether the Addressee Is at the Address)
2004/m.150/i
4721/m.887
7201/m.16
SUMMARY : The case is related to the request for cancellation of the proceedings. In the concrete case, the notification issued on behalf of the mortgage borrower and containing the warning was made with the explanation “To the signature of the brother sitting together in the same residence”. However, since the notification was made directly to his brother, who lives under the same roof, without determining whether the addressee is at the address, 16 of Law No. 7201. article 25 of the Notification Regulation. according to the article, it is irregular and does not have legal consequences. In this case; since there is no notification of account floor warning in accordance with the method, and therefore TMK’s 887.since there are no conditions for notification (notice of exemption) within the meaning of the article, it is not possible to follow up the complainant mortgage owner by sending an executive order by cashing the mortgage. In that case, while the court should decide on the cancellation of the proceedings against the complainants, the provision on the rejection of the request on written grounds is incorrect.
CASE: The file related to this work was sent from the scene to the apartment upon request by the appellant’s examiners within the time limit of the court decision with the date and number written above, and the report prepared by the Examiner for the case file was reviewed and considered as necessary after the hearing and all the documents in the file were read and examined by the Examiner for the case file:
VERDICT : Although other appeals are not in place;
Started by a creditor bank with the way mortgage money mortgage enforcement proceedings are translated into the principal judgment against a debtor of a loan with the combined ilamli Maliki in the complaint; notice of other claims, saying it was improper notice sent to them in addition to the Times account of the pursuit of the cancellation demanded by the court, notice should be deemed to have been notified of the Times account, the account in the Times had the right to complain because it is not time to notice the object of the complaint be rejected on the grounds that it was decided that it is noted.
In accordance with Article 150/i of the IIK; If the party using the loan is not challenged within eight days from the date of notification or deemed notified in accordance with Article 68/b of the claim for compensation due to a written statement of the party using the loan through a notary public or a notice of payment of the debt or a non-cash loan sent to the address specified in the mortgage contract, the amount of the debt in the notice becomes final. In accordance with this article, the notification issued to the address in the loan agreement is considered notified, even if it is returned.The basis of follow-up in a concrete case is the examination of documents, the debtor … Ltd. The address of the Sti, which is reported in the loan agreements, is also the borrower’s registration address “… Cad. No. 89/7….“ it is, and the account is fold warning “… Cad. It is understood that the notification has been issued to the address ”No: 51/1 …” and the notification has been returned with the comment that the addressee company has been moved from the address. As such, the notification of the notice of warning is irregular and does not have legal consequences.In this case; since there is no notification of account folding notice in accordance with the method, it is not possible to follow up on the complaining borrower by sending an executive order by cashing the mortgage.On the other hand, although there is no obligation to send an account statement to the immovable property owner who issues a mortgage to a third party in accordance with Article 150 / i of the IIK; 887 of the Turkish Civil Code in order to track the third person who issues a mortgage. in accordance with the article, the receivable must be requested from him, that is, an exemption notice must be sent. In other words, according to this regulation, enforcement proceedings cannot be initiated against mortgaged immovable property owner unless notification is made to a third party, as there will be no debt muaccel from his side. It should also be noted that the last sentence of Article 150 / I of the SECOND Law; “The statement of account, compensation claim or warning of the mortgaged immovable property must be notified to a third party or deemed to have been notified, 887 of the Turkish Civil Code. it contains the provision ”replaces the payment request provided for in the article”.In the concrete case, the notification issued on behalf of the mortgage borrower … and containing the warning was made on 09.10.2012 with the explanation “To the signature of his brother … who lives together in the same residence”. However, since the notification was made directly to his brother, who lives under the same roof, without determining whether the addressee is at the address, 16 of Law No. 7201. article 25 of the Notification Regulation. according to the article, it is irregular and does not have legal consequences.In this case; since there is no notification of account floor warning in accordance with the method, and therefore TMK’s 887. since there are no conditions for notification (notice of exemption) within the meaning of the article, it is not possible to follow up the complainant mortgage owner by sending an executive order by cashing the mortgage.In that case, while the court should decide on the cancellation of the proceedings against the complainants, the provision on the rejection of the request on written grounds is incorrect.CONCLUSION : The court’s decision on the partial acceptance of the debtors’ appeals was made for the reasons written above in Articles 366 of the IIK and 428 of the HUMK. in accordance with the articles (ON ITS DETERIORATION), according to the reason for the deterioration, there is no place for examining the creditor’s appeals, the refund of the fee received in advance, if requested, was decided unanimously on 01.03.2016, with a clear way to correct the decision within 10 days from the notification of the decision.
