1. Whether the plaintiff is really a creditor or not, as a prerequisite to the case, it should be examined ex officio by the court.
Since the claimant has a receivable from the defendant debtor in the action for annulment of disposition, the court must first investigate whether this precondition is fulfilled during the proceedings of the action for annulment. There is an obligation to investigate whether the plaintiff creditor has any receivables from the defendant debtor. Otherwise, those who do not object to the enforcement proceedings by agreeing with the creditor or by not making the necessary effort due to the fact that she/he is in debt, against this behavior of the debtor who did not file a negative declaratory action against the follow-up based on bills of exchange, which cannot be stopped upon objection It is possible that the third parties who acquire property from the debtor will be damaged by the judiciary but it is not acceptable.1
The decision of the Supreme Court of Appeals General Assembly, numbered 2017/2773 E., 2021/987 K. and dated 14.09.2021 provides that;
"The defense of the defendant third party that the receivable is not real and the debtor is not insolvent should be emphasized, since these issues are a condition of litigation, there is no doubt that they will be investigated ex officio by the court."
The decision of the Supreme Court of Appeals General Assembly dated 23.10.2013, numbered 2013/17-224 E., 2013/1478 K. provides that;
"While providing the creditor with the opportunity to collect his receivables in the actions for the annulment of disposition, it should not be ignored that the reality of the receivable of this creditor is aimed, not the formal existence. As a result, there is an obligation to investigate the fact that the existence of the receivable, which is one of the visibility conditions of the action for annulment of disposition, is real.
The decision of the Supreme Court of Appeals General Assembly dated 19.06.2002, numbered 2002/15-495 E., 2002/528 K. provides that;
"In the action for the annulment of the savings, the 3th person defendant can claim and prove that the receivable based on the insolvency document is not in reality ((Prof. D. Baki Kuru Execution and Bankruptcy Law, c:4, Kuru Execution and Bankruptcy Law, c:4, sh:2506 etc.). Because one of the conditions of the lawsuit is that the person making the savings must be in debt. If it is claimed that the saver does not have a real debt to the creditor, in this case, the debtor's title should be resolved first. For this reason, the claim of the third party defendant that the debt is not real and the defense of the existence of collusion should be examined by the court."
The decision of the Supreme Court of Appeals General Assembly, 15.11.2017 T., 17-2361/1371 K. provides that;
In cases for annulment of disposition, since the receivable must be a real receivable, the case for annulment of disposition will not be heard for unreal receivables.
Decision of the General Assembly of the Supreme Court of Appeals, numbered 19.09.2012 T., 3-101/597 K. provides that;
"In order for the action for annulment of the savings to be heard, first of all, the plaintiff (the creditor) must have a real receivable, in other words, the disposer (the debtor) must be a real debtor. Therefore, in the action for annulment; The defendant 3rd party can argue and prove that the receivable attached to the insolvency document is not in reality, and that there is collusion between the debtor and the creditor. Otherwise, in the event that the proceedings are finalized by agreeing with the follow-up creditor or not objecting to the enforcement proceedings, the debtor, who does not file a negative declaratory action, incurs damages by the third parties, who acquire goods from the debtor, through the court, due to the behavior of the debtor."
The decision of the 17th Law Department of the Supreme Court of Appeals, dated 15.06.2015, numbered 8803/8659 provides that;
"If it is claimed that the disposer does not owe a real debt to the creditor, in this case, the debtor status of the disposer should be analyzed first, for this reason, the claim that the debt is not real and the defense of the existence of collusion should be examined by the court".
Decree of the 17th Civil Chamber of the Court of Cassation dated 12.05.2015 and numbered 21042/7303 provides that;
"In order for the annulment action to be heard, first of all, the plaintiff must be a real creditor,... the evidence in this regard should be collected and a decision should be made according to the result,"
2. The cancellation of the objection lawsuit/removal of the objection filed as a result of the debtor's objection to the enforcement proceeding of the plaintiff creditor, or the objection lawsuit filed by the debtor in the Enforcement Law Court or the negative assessment lawsuit filed in the general courts should be made as a matter of waiting.
The existence of the plaintiff's receivable is a condition of the action for annulment of the disposition; if the objections of the defendant debtor are accepted as a result of the lawsuit requested to be made a pending matter, the receivable will not be in question. Thus, the case will be dismissed due to the absence of a prerequisite. For the reasons explained, it is necessary to wait for the finalization of the court decision in the cancellation of the objection / removal of the objection filed as a result of the debtor's objection to the enforcement proceedings of the plaintiff creditor, or in the objection case filed by the debtor in the Enforcement Law Court or in the negative assessment case filed in the general courts.
As a matter of fact, the decision of the 17th Civil Chamber of the Court of Cassation dated 23.02.2010 and numbered 10319/1442 provides that;
"Since one of the conditions for the hearing of the action for annulment of the disposition is that the receivable subject to the proceeding must be finalized, if the debt subject to the proceeding has been objected to and the creditor has filed a lawsuit for annulment of the objection or requested the removal of the objection from the execution court, the court will have to make the result (finalization) of these as a matter of waiting"
Decree of the 17th Civil Chamber of the Court of Cassation dated 10.03.2009 and numbered 2008/3533 E., 2009/1270 K provides that;
"It is understood from the documents in the file that an enforcement proceeding was filed against the debtor with the file numbered 2007/5029 of the Batman Enforcement Directorate, but a lawsuit was filed by the debtor in the Batman Enforcement Law Court due to objection to the signature and it was decided to stop the proceeding in this case. In that case, the court should consider the signature objection case filed to the Batman Enforcement Law Court as a 'preliminary matter' and wait for the outcome of this case"
Decree of the 15th Civil Chamber of the Court of Cassation dated 15.01.2001 and numbered 2000/5764 E., 2001/199 K provides that;
"In order to enter into the merits of the case for annulment of the disposition, the enforcement proceeding must be finalized. In the concrete case, since the enforcement proceeding was objected to, it was not correct to dismiss the case on written grounds, while the case for the removal of the objection at the Execution Examining Authority should be made a preliminary matter and a judgment should be established according to the result, and the judgment should be reversed for this reason."
Decree of the 17th Civil Chamber of the Court of Cassation dated 02.04.2019 and numbered 2016/16155 E., 2019/3936 K provides that;
"It is contrary to the procedure and the law to make a written decision with an erroneous evaluation, while the finalized result of the negative determination case pending in the file numbered 2014/544 Esas 2016/790 Decision of the Civil Court of First Instance should be made as a waiting matter and a decision should be made according to the result to be formed."
Decree of the 17th Civil Chamber of the Court of Cassation dated 25.09.2019 and numbered 2016/17512 E., 2019/8472 K provides that;
"In this case, it is contrary to the procedure and the law for the court to make a decision in the written manner with an erroneous evaluation, while the finalized result of the cancellation of the objection case should be made as a matter of waiting, and if the proceeding is finalized, the attachment report, which may replace the insolvency certificate, should be investigated after this stage and a decision should be made according to the result to be formed."
Decree of the 17th Civil Chamber of the Court of Cassation dated 23.09.2014 and numbered 2014/11734 E., 2014/12423 K provides that;
"The lawsuit is related to the request for annulment of the disposition. In the concrete case, since it is understood that there is a lawsuit filed by the defendant debtor against the plaintiff creditor in the Enforcement Court before the case at hand and the case is pending, and the decision of non-prosecution given by the Chief Public Prosecutor's Office as a result of the preparatory investigation made against the persons including the plaintiff upon the complaint of the defendant debtor has not been finalized, the Court should wait for the finalization of the aforementioned lawsuit and non-prosecution decision, all evidence should be evaluated together and a decision should be made accordingly."
2.1. In this context, it is necessary to examine the commercial books and records of the plaintiff and the defendant debtor in order to determine whether the plaintiff is actually a creditor or not, and if so, the amount of the actual creditor.
As mentioned above, the plaintiff should examine whether it actually has a receivable from the defendant, and if so, what is the amount of the receivable. This examination should be made before the commercial books and/or records of the plaintiff and the commercial books and/or records of the defendant debtor and the debt or receivable situation should be revealed.
Decree of the 4th Civil Chamber of the Court of Cassation dated 08.11.2021 and numbered 2021/1896 E., 2021/3739 K provides that;
"While the court should give the plaintiff time to present his evidence on this issue in order to determine the commercial or legal relationship on which the receivables subject to the enforcement proceedings relied on by the plaintiff are based, and to determine whether there is a real debt-credit relationship by conducting an examination and research on the commercial books and records of the plaintiff and the debtor defendant company by means of an expert, and then to make a decision according to the result to be obtained, it was not correct to make a decision as written as a result of incomplete research and examination."
Decree of the 17th Civil Chamber of the Court of Cassation dated 07.05.2019 and numbered 2016/7423 E., 2019/5597 K provides that;
"In order for such lawsuits to be heard, the claimant's receivable from the debtor must be a real receivable, in addition to other litigation conditions. First of all, this issue should be emphasized. The work to be done is to examine the commercial books of the defendant creditor and the debtor, who are merchants, by means of an expert in their field, and determine whether there is a real receivable based on the bond subject to follow-up."
Decree of the 17th Civil Chamber of the Court of Cassation dated 26.12.2017 and numbered 2015/10994 E., 2017/12126 K provides that;
"The court should discuss the realization of the receivable by evaluating the material and legal facts stated and the fact that the bill on which the proceeding is based was put into the proceeding approximately 2 years after its maturity, and should decide according to the result to be formed."
Decree of the 17th Civil Chamber of the Court of Cassation dated 28.02.2017 and numbered 11975/2134 provides that;
"In the case of cancellation of disposition, an expert examination should be made on the commercial books of the defendant debtor company, which is a merchant and is obliged to keep commercial books, and the basis of the promissory notes in the follow-up file on which the lawsuit is based and therefore the reality of the receivable should be investigated and whether it is collusive or not should be evaluated according to the evidence collected and a decision should be made according to the result to be formed".
Decree of the 17th Civil Chamber of the Court of Cassation dated 07.06.2016 and numbered 20994/6940 provides that;
"Since the defendant third party claims that the receivable based on the lawsuit is not real, the court should focus on this issue, if the plaintiff has a company, the existence of such a receivable debt relationship in the company records should be determined whether the receivable is real or not by conducting an expert examination on the commercial books".
Decree of the 8th Civil Chamber of the Court of Cassation dated 10.07.2014 and numbered 11304/14720 provides that;
"On the other hand; in the concrete case, the third party claims that there is a collusive enforcement proceeding between the creditor and the debtor. It is possible for the court to determine the existence and reality of the legal relationship that led to the issuance of the promissory notes subject to enforcement proceedings through an expert examination to be conducted on the commercial records of the two companies."
Decree of the 12th Civil Chamber of the Court of Cassation dated 24.10.2017, numbered 3395/9512 provides that;
"In the case of cancellation of disposition, a comparative examination should be made on the commercial books of both the creditor and the debtor company to determine whether the debt subject to the follow-up exists and what it is related to, and a decision should be made according to the result"
Decree of the 17th Civil Chamber of the Court of Cassation dated 12.04.2016 and numbered 10980/4628 provides that;
"Although there is no maturity in checks, it is a known fact that in commercial life, checks are used with maturity (post-dated) like bills. In this case, in order to determine the commercial relationship between the plaintiff and the defendant debtor that requires the issuance of the checks subject to the follow-up and the date of birth of the debt, it is necessary to give time to the attorneys of the parties to report their evidence in this direction, and if necessary, an expert examination should be made on the commercial books of the plaintiff and the defendant debtor, all the evidence should be evaluated together and a decision should be made according to the result, but the judgment based on incomplete examination is against the procedure and the law."
2.2. Even if the receivable claimed by the plaintiff is finalized as a result of the pending lawsuit, this finalization does not indicate that the receivable subject to the follow-up actually exists.
Even if the proceedings and the claim are finalized, the Court must make the above-mentioned examination - that is, whether the plaintiff actually has a claim - ex officio.
Even if the proceedings and the receivable are finalized, the Court must examine whether the plaintiff is actually a creditor or not during the proceedings of the action for annulment of disposition, since it is a prerequisite for the action that the plaintiff actually has a receivable. The aforementioned examination cannot be refrained from being made on the grounds that the aforementioned pending case has been finalized against the defendant debtor.
As a matter of fact, the decision of the General Assembly of the Court of Cassation dated 19.6.2002 and numbered 2002/15-495-528 provides that;
"even if the proceeding is finalized by deciding to accept the case as a result of the cancellation of the objection filed upon the objection to the enforcement proceeding, the existence of such a defense in the cancellation of the disposition case should be investigated whether the receivable is a real receivable - whether it is based on collusion".
Decree of the 17th Civil Chamber of the Court of Cassation dated 24.05.2016 and numbered 2014/10853 E., 2016/4623 K provides that;
"The fact that the enforcement proceedings against the debtor are finalized does not always indicate that the receivable subject to the enforcement proceedings is a real receivable, i.e. that the plaintiff is really the creditor and the debtor is really the debtor."
Decree of the 17th Civil Chamber of the Court of Cassation dated 12.04.2016 and numbered 2014/14267 E., 2016/4635 K provides that;
"The fact that the enforcement proceeding against the debtor is finalized does not always indicate that the receivable subject to the enforcement proceeding is a real receivable, that is, that the plaintiff is really a creditor and the debtor is really a debtor. Although the enforcement proceeding against the debtor is finalized, it is necessary for the court to ex officio evaluate whether the plaintiff is actually a creditor."
Decree of the 17th Civil Chamber of the Court of Cassation dated 07.06.2016 and numbered 2014/20994 E., 2016/6940 K provides that;
" Although the enforcement proceedings against the debtor have been finalized, it is necessary for the court to ex officio evaluate whether the plaintiff is actually a creditor. The objection that this is not true is open to be examined in the face of these facts. "
Decree of the 17th Civil Chamber of the Court of Cassation dated 24.05.2016 and numbered 11364/6282 provides that;
"The fact that the execution proceeding against the debtor is finalized does not always indicate that the receivable subject to the proceeding is a real receivable, that is, the plaintiff is really a creditor and the debtor is really a debtor, and whether the plaintiff is really a creditor should be evaluated by the court ex officio".
3. As a result of the examination to be made by the Honorable Court, even if it is determined that the plaintiff actually has a receivable; if the date of birth of the receivable is after the date of disposition, the present lawsuit should be dismissed for lack of cause of action.
We need to explain this prerequisite with an example from bank general loan agreements. Accordingly, it should be determined whether the defendant debtor has a debt under any of the general loan agreements before the plaintiff bank, and if the date of the general loan agreement under which the defendant debtor has a debt is a date after the date of disposition, the case before us should be dismissed due to the absence of a precondition.
Decree of the 5th Civil Chamber of Izmir Regional Court of Appeals No. 55/585, T. 18.04.2018 provides that;
"The work to be done is to determine whether there is a debt arising from the loans given to the debtor company before the issuance date of the promissory note subject to the proceeding by examining the bank records through an expert expert in the field, whether the promissory note on the basis of the proceeding is given against the debt arising from the previous loan agreement or as collateral for the last loan agreement dated 22.01.2015, and to determine whether the prerequisite of the lawsuit regarding that the disposition should be made after the debt is realized".
Decree of the 17th Civil Chamber of the Court of Cassation dated 20.06.2017 and numbered 2015/19092 E., 2017/6998 K provides that;
"In this case, the work to be done is to examine the bank records by means of an expert in the field of work, whether there is a debt arising from the loans granted to the debtor company before the date of issuance of the promissory note, whether the promissory note on which the proceeding is based was given against the debt arising from the previous loan agreement or as a guarantee of the terminated loan agreement dated 10.08. 2012 dated 10.08.2012, and if the promissory note was given against the debt arising from the previous loan agreements, it is necessary to decide according to the result to be formed by entering into the merits of the case in terms of the disposals dated 12.07.2012, otherwise, as in the present case, it is necessary to decide to dismiss the case only in terms of these dated dispositions due to the absence of preconditions."
Decree of the 17th Civil Chamber of the Court of Cassation dated 20.06.2017 and numbered 2016/9642 E., 2017/7008 K provides that;
"In this case, it is necessary to examine the bank records through an expert in the field of work to be done, to investigate whether there is a debt arising from the loans granted to the debtor company before the issuance date of the promissory note, whether the promissory note is given against the debt arising from the previous loan agreement or as a guarantee of the last loan agreement dated 10.08.2012, and if the promissory note is given against the debt arising from the previous loan agreements, it is necessary to decide according to the result to be formed by entering into the merits of the work, otherwise, as in the present case, the case should be dismissed due to the lack of prerequisites."
4. The plaintiff creditor is required to submit the certificate of insolvency to the annulment of disposition lawsuit; otherwise, the lawsuit must be dismissed for lack of a cause of action.
Decree of the 15th Civil Chamber of the Court of Cassation dated 15.01.2003 and numbered 2002/6346 E., 2003/153 K provides that;
"In the concrete case, it is not disputed that a certificate of absolute insolvency was not issued for the debtor, and the attachment report dated 25.4.2000 is not a temporary certificate of insolvency in the sense of Article 105 of the EBL. As such, instead of dismissing the lawsuit due to the absence of a cause of action, the acceptance of the lawsuit as written by examining its merits was not correct and required a reversal."
Decree of the 15th Civil Chamber of the Court of Cassation dated 22.09.2004 and numbered 2004/3920 E., 2004/4487 K provides that;
"A temporary or definitive certificate of insolvency must be placed in the file in order for the action for annulment of savings to be heard. Since this issue is a condition of the lawsuit, it must be taken into consideration ex officio. The plaintiff did not file the final certificate of insolvency mentioned in Article 143 of the EBL. The attachment report dated 26.2.2003 in the follow-up file numbered 2003/255 E. of Ankara 13th Execution Directorate is also not a temporary certificate of insolvency. In this case, since the court did not submit a provisional or final certificate of insolvency, it was not correct to decide by examining the merits of the case instead of dismissing the case due to the absence of the condition of the case, and the decision had to be reversed."
Decree of the 15th Civil Chamber of the Court of Cassation dated 03.11.2014 and numbered 2004/1725 E., 2004/5593 K provides that;
"Pursuant to Articles 277 et seq. of the EBL, as a rule, a creditor holding a final or provisional certificate of insolvency may file a lawsuit for annulment of disposition. Indeed, in execution proceedings through foreclosure, the partial or total failure to collect the receivable can only be determined by the existence of the aforementioned certificate of insolvency. Therefore, the existence of an insolvency certificate is a condition for the resting of the action for annulment of the disposition. As such, it is obligatory for the court to investigate automatically (ex officio) whether the creditor who filed the lawsuit has a certificate of insolvency. In the concrete case, there is no final certificate of insolvency mentioned in Article 143 of the EBL, and the attachment minutes dated 12.5.1999 and 22.6.1999 do not qualify as temporary certificates of insolvency mentioned in Article 105 of the same law. For all these reasons, it was not correct for the court not to consider that there was no condition for the case to be heard and to enter into the merits of the case and to make a written judgment, and the decision had to be reversed."
4.1. At this very point, we would like to state that the seizure report kept as "not available for seizure" in the seizure made only at the workplace of the debtor does not qualify as a certificate of insolvency.
This is because the debtor may have other assets that cover the debt that is the subject of the proceedings -assuming for a moment that it is real-. Here, the Honorable Court should investigate all the aforementioned assets of the defendant debtor and accordingly determine whether the defendant debtor is in a state of insolvency.
Decree of the 17th Civil Chamber of the Court of Cassation dated 25.02.2019 and numbered 5604/1933 provides that;
"The court should investigate whether the defendant debtor is in a state of insolvency, whether the defendant debtor has a tractor registered to him as declared, or whether he has any assets to cover the claim".
4.2. Moreover, the fact that no attachment was made at the known addresses of the defendant debtor and the lawsuit was filed without meeting this condition is an indication that there is no certificate of insolvency.
Decree of the 17th Civil Chamber of the Court of Cassation dated 09.06.2014 and numbered 20279/9207 provides that;
"In the proceeding constituting the basis of the lawsuit, no result was obtained from the attachments made to the addresses indicated by the defendant debtor in the general loan agreement"
and in order to obtain a certificate of insolvency, it is necessary to seize all addresses of the debtor and these seizures must not have yielded any results. However, no attachment was made at the addresses shown by the debtor in the general loan agreements.
Footnotes
1. The decision of the Supreme Court of Appeals General Assembly, dated 19.06.2002 and numbered 2002/15-495 E., 2002/528 K.
2. UYAR/UYAR/UYAR, s.1102
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
