20 Feb The Decision Of The Supreme Court On The Abolition of Foreclosure
T.C. SUPREME
4.Legal Department
Basis: 2015/16555
Decision: 2016/8360
Decision Date: 27.06.2016
REQUEST FOR REMOVAL OF FORECLOSURE – ACQUISITION OF REAL ESTATE BEFORE REGISTRATION – THE DECISION TO REGISTER IS NOT A CONSTITUENT TRANSACTION, BUT A DECLARATIVE TRANSACTION – THE FAILURE OF THE DECISION TO REJECT THE REQUEST – THE PROVISION IS BROKEN
Summary: the case relates to the request for the removal of the foreclosure. The immovable subject of the case the case of non-registration of the title deed in the name of the debtor in the case of collusive sales process and cancel the deed and a malicious process on the grounds that the cancellation of registration where a decision is made on behalf of the plaintiff and granted registration in accordance with the regulations of the decision is not a founding reporter of nature nature is a process of a transaction in the name of the title deed to the plaintiff, and the plaintiff apparently that didn’t go over immovable on the subject matter of the case…. It is necessary to decide whether to remove the liens placed in the follow-up files of the Executive Office 2011/5303 and …the Executive Office 2010/28168. It was not right for the court to decide to reject the request on grounds that were not in place, so the decision had to be overturned.
(4721 P. K. m. 705)
Litigation: Plaintiff and against the defendant by the other attorney and the other a 28/12/2012 given on the day with the petition, the court, upon request made by the removal of the warrant at the end of the trial; the case given for the rejection of 23/12/2014-time decision by the Supreme Court as the plaintiffs and the defendant requested the Deputy Attorney examination within the period, but once the petition of Appeal has been decided upon the adoption of the examination by the judge with the report was discussed by examining the papers in the file.
Verdict: the case relates to the request for the removal of the foreclosure. It was decided by the court to reject the request; the sentence was appealed by the counsel of the plaintiffs and the counsel of the defendants.
The defendants to the plaintiff of a lawsuit initiated by the subject of his real estate parcel No. 3815 following files placed in execution of immovable that is the subject matter of the case of foreclosures collusive First Instance Court Decision No. of the sales process in the case of immovable principles and commentary 2010/23 2011/524 family home to the processing of cancellation and noting that the decision has been made, the defendants imposed by the removal of foreclosures wanted.
The defendants argued that the claims of muvazaa were not in place and that the foreclosure process was applied due to the fact that the immovable record of the subject of the lawsuit was on behalf of the non-sued debtor … at the time of the foreclosure, and that the lawsuit should be dismissed.
The court decided to reject the request on the grounds that the claim of muvazaa was not proven and that the foreclosures placed on the real estate were placed before the comment of the family residence and while the real estate was registered on behalf of the borrowers.
Case file review; under a power of Attorney given to the groom by the plaintiff to the case of the case on 06/09/2005 immovable sold out Clover Yilmaz, Yilmaz on 04/06/2008 Clover case by the executive in the capacity of the borrower, subject to the following files in’na for sale, this sale from the plaintiffs …’s wife’s main numbered 2010/23 to be aware of on the court of First Instance in case the transfer without the consent of the estate in the case of family housing because of the cancellation of the title deed in the name of putting family residence with a commentary…, requested by the court following the trial, it is understood that the sale process is a muvazaali and malicious transaction contrary to the open provision of the law, and again with the admission that the house subject to the lawsuit is a family residence; the real estate subject to the case 3815 parcel number … with the cancellation of the registration of the title deed on behalf of the real estate … with the registration and registration of the title deed on behalf of the family residence comment was decided.
705 Of The Turkish Civil Code No. 4721. according to the article, registration in the land registry is mandatory for the acquisition of real estate. Registration is a land registry operation that is sought for revenge of immovable property. Real estate cannot be acquired unless it is registered with legal exceptions. However, this rule is not an absolute rule, some of the exceptions to this rule are regulated in the Turkish Civil Code. In these exceptional cases, which are counted in the law, real estate is acquired before registration, but the assignment cannot be saved without the registration process. In cases where real estate is acquired before registration, the important point is that in these cases, the registration in the land registry is not of a constituent nature, but of a declarative nature. In the declarative registration, the right in kind has already been acquired; the duty of the registration is not to ensure the right in kind, but to inform who the new owner of the right in kind is. TMK’s 705. in the second paragraph of the article, it is stated which states will ensure the acquisition of immovable property before registration. Accordingly; In cases of inheritance, court decision, forced execution, occupation, expropriation and other cases provided for by law, property is acquired before registration. However, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry.
In this case, the subject matter of the case from the case of immovable cancel the deed and registration of the title deed in the name of the debtor in the case of a malicious process and process and collusive sales on behalf of the prosecution on the grounds that the cancellation of registration where a decision is made, the registration of the decision given in accordance with the regulations mentioned above transaction is not a founding reporter of the nature of nature in the name of the title deed to the plaintiff and the plaintiff is a process that didn’t go over apparently immovable on the subject matter of the case…. It is necessary to decide whether to remove the liens placed in the follow-up files of the Executive Office 2011/5303 and …the Executive Office 2010/28168. It was not right for the court to decide to reject the request on grounds that were not in place, so the decision had to be overturned.
Conclusion: it was decided by a vote on 27.06.2016 that the Appeal decision should be overturned for the benefit of the plaintiffs with the reasons described above, that there is no place for the defendant’s appeals to be examined at this stage according to the reason for the violation and that the advance fee received from the plaintiffs should be returned on request.
VOTING AGAINST
I do not agree with the decision to overturn the majority, as I agree with the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, especially the rejection of Appeals that are not in place according to the lack of a hit in the evaluation of the evidence, and the approval of the provision in accordance with the procedure and the law. 27/06/2016
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