T.C. Supreme Court 23. Department of Law B: 2014/1825, D: 2014/7542, D.D.: 25.11.2014

CASE: At the end of the trial of the case challenging the order line between the parties, the decision to dismiss the case for reasons written in the annex was appealed by the plaintiff’s attorney dec a trial basis.

Since the subject of the appeal is not subject to a hearing due to the nature of the decision, after the refusal of the request for a hearing, it was decided to conduct an examination on the documents and it became clear that the request for an appeal was in due course, the file was examined, the need for it was discussed and considered.

DECISION : Deputy plaintiff, Istanbul 14. 2009/17677 E of the Executive Directorate. numbered dated 17.09.2012 prepared in the following file as well as the ruler of the defendant that is allocated a share of first place in foreclosures, as well as within two years of sale of immovable property subject to the ruler not to want that fell because of also the subject of monitoring of bonds had been issued as collateral for the loan agreement as essentially because that is not in the bill, the defendant also it would take to collect from the debtor that you would get from a there are no externally, therefore, that the defendant pay to saying that it is against the law to leave, as well as the cancellation request and of the ruler has prosecuted.

The defendant’s deputy asked for the dismissal of the case, arguing that his client had not made a collection from the debtor, that his liens had not been reduced because they had also invested the advance on the sale by requesting the sale of the debtors within the legal period.

Court, claim, defense, and expert partially adopted, according to the report of the executive proceeding the defendant of the underlying securities and does not comprise the credit agreement as in the claim that the coverage of the bill, however, is followed by the claim that the defendant would charge that can be invoked externally, it could not be proven where the defendant had not fallen on mahcuz of distraint on the grounds that the case is dismissed.

The decision was appealed by the acting plaintiff.

When both the order and the merits of the defendant’s receivable are challenged by the plaintiff’s side, the court should first examine the reasons for objecting to the queue and examine the objections to the merits of the receivable if the objection to the queue is not seen at the place.

Although appeals against both the order and the basis of the receivable were considered together by the court in a concrete case, the fact that the objection to the order of the receivable was not found in place did not affect the outcome of the transition to the examination of objections to the basis of the receivable.

As a rule, in cases of objections to the queue schedule based on the reason for the failure, the claim is to the point that the debtor and the respondent creditor create a debt relationship in an agreed (mutual) form and intend to smuggle goods from other creditors. For this purpose, the date of the agreed treatment according to the debtor’s transaction is important. In order to be able to speak of mutvazaa, as a rule, the mutvazaa savings must bear the date after the debtor’s transaction made in favor of the other creditor. In other words, in order to be able to talk about muvaza, as a rule, the receivable that is claimed to be muvaza must be born later or recently than the receivable that is alleged to have been stolen from it, and in other words, as a rule, muvaza savings must bear the date after the debtor transaction made in favor of the other creditor. Acceleration of follow-up operations, Article 20 of the IIK. in accordance with the article, the waiver of deadlines and the imposition of foreclosure on the borrower’s statement are not cases that indicate success alone. The burden of proof in cases of objection to the ordinal chart based on the Muvazaa claim is on the defendant creditor. The defendant must prove the existence and amount of the creditor’s receivables with duly verifying written evidence, which was drawn up before the follow-up and is of a nature that can also be asserted against third parties. A check and a bond, which can always be issued, are not enough on their own to prove the existence of a receivable. Bills of exchange, invoices and checks are only conclusive evidence from the point of view of the parties and their financial and cultural successors, and the plaintiff, who is outside the basic relationship and exchange relationship, cannot be considered a means of proof of this nature from the point of view of a third party. On the other hand, the witness cannot be heard unless the other party has an explicit consent according to the amount of the receivable and the judgment cannot be established based on the witness statement. It is necessary to discuss whether the receivable is real within the framework of the defendant creditor’s defense and evidence, evaluate the legal relationship between the defendant and the debtor and the date of birth of the defendant’s receivable, decide according to its result.

On the other hand, if the creditor’s claim challenging the queue line is not that there is no real receivable, but that the receivable is located but terminated, as a rule, it should be accepted that the burden of proof has been shifted, in other words, the burden of proving the existence of reasons such as payment should be placed on the plaintiff. (Adnan with a wand/Short Sadat. The Next Line in Foreclosure and Bankruptcy/3.b. Ankara 2005 p.158) The built-in application of our apartment is also dated 29.04.2013 and is dated 1989 E., 2755 K; dated 17.03.2014 and 1306 E., 2005 K. as explained in the numbered hymns, this is the direction.

In the concrete case, the defendant’s receivables were not claimed to be secured, it was argued that only the notes that are the basis of the enforcement proceedings initiated by the defendant are collateral, therefore they do not carry the quality of exchange notes and the debt has been paid. Since foreign exchange securities generate debt regardless of the underlying relationship, although the bond is not based on a receivable, the discoverer cannot avoid paying it with a bet because there is no underlying relationship with this stock. In this respect, although the holder is not under the burden of proving to the debtor that the deed is based on a receivable, the defendant who is challenged that he will receive the burden of proof in cases of objection to the ordinal chart based on the muvazaa claim falls to the creditor. The claim that the debt has expired must be proved by the plaintiff. The plaintiff could not prove this fact. There is also no statement on the bonds that are the basis for the defendant’s enforcement proceedings that they are issued as “collateral notes”. The plaintiff who claims otherwise must prove this claim. Even if a statement was put on the bonds that they were issued as collateral, this time the defendant would have the burden of proving that the bond was followed up after the fact that caused the collateral occurred. At the trial stage and in the appeal petition, the plaintiff has not been provided with any evidence that the bond is a guarantee bond.

According to these statements and the articles in the file, the evidence on which the decision is based and the reasons for it, there is no inconsistency in the discretion of the evidence, the appeals of the plaintiff’s attorney were not considered to be in place.

Conclusion : for the reasons described above, all of the plaintiff’s attorneys appeals procedures and the provision for the rejection of the appeal in accordance with the law, APPROVED in advance, since the mortar was deposited that need to be taken to re-grout removal within 15 days after the notification of the decision whether to 25.11.2014 way for the correction of the decision to open on it’s unanimous.