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ACTIONS FOR CANCELLATION OF SAVINGS
ACTIONS FOR CANCELLATION OF SAVINGSThe debtor’s authority over his goods is unlimited before a lien is imposed on the goods or a bankruptcy decision is made. With the foreclosure and bankruptcy decision, the savings authority of the debtors is restricted. The debtors may dispose of some or all of their creditors partially or completely in order to favor some of their creditors or to prevent their property from being seized and sold in the future to the detriment of some all creditors. The action for annulment of disposition is a lawsuit that gives the creditors the authority to seize and sell these goods, so that the action against the debtors does not bear any consequences for them and is deemed null and void.
Nature of Action for Cancellation of Disposition
In order to ensure that all the savings made by a debtor to smuggle his property from his creditors before the seizure of his property with the intention of harming his creditors or before the bankruptcy decision is rendered, it can be opened within a period of 5 years by the creditors holding a final or temporary insolvency document, based on the reasons stipulated in the law, in order to ensure that all the savings are null and void only for the creditor who filed the lawsuit. It is a personal act of performance that gives the plaintiff creditor the power of enforcement over the property and rights that are the subject of the lawsuit, which he has removed from his assets.
Purpose of Action for Cancellation of Disposition
The purpose of the action for annulment of disposition is to ensure that the debtor’s actions taken in order to smuggle some of his property in the period before the restriction of his power of disposition are deemed null and void for the plaintiff, and to ensure that the debtor’s property and rights removed from the debtor’s assets are still given the power of enforcement to the creditors as if they belonged to the debtor.
Concluding the Case in Favor of the Creditor
The subject matter of the lawsuit does not return to the debtor’s assets. Only the creditor who filed the lawsuit benefits from this result. Without the need to re-register the title deed on behalf of the debtor, the court decides to cancel the sale limited to the creditor’s receivable in the execution file, as if the sale made by the debtor to the third party has not been made, and the creditor is given the authority to seize and sell the property subject to the lawsuit.
Plaintiff for Cancellation of Disposition
İptal davasını açacak olan kişiler kesin ya da geçici aciz vesikası sahibi olan alacaklılardır. Kesin aciz vesikası, alacaklının alacağının tamamına kavuşamaması durumunda alacaklının alacağına kavuşamadığı kısma ilişkin alacaklıya verilen belgedir. Borçlunun haczedilecek malların kısmen haciz tutanağına geçirilmesi ve bu tutanaktan sonra diğer araştırmaların da yapılarak borçlunun mallarının alacaklının alacağının tamamını karşılamaması durumunda icra dosyasının içeriği geçici aciz belgesi hükmü taşımaktadır. Yeni düzenlemeler ile iptal davası açmak isteyen alacaklılar icra dairesine başvurarak geçici aciz belgesi alabileceklerdir.
Muvazaa nedeni ile açılan iptal davalarında ise zaten işlem muvazaalı olduğundan borçlu hakkında bir aciz vesikası sunulmasına gerek duyulmadan dava açılabilmektedir.
İptal davalarında borçlu ve üçüncü kişi zorunlu dava arkadaşıdır. Üçüncü kişinin dördüncü veya beşinci kişiye malı devretmesi durumunda alacaklı tarafından bu kişilerin kötü niyetli oldukları kanıtlanırsa bu kişiler hakkında da iptal davası açılabilir. Hangi borçlunun tasarrufunun iptali istenmiş ise aciz halinde olma koşulu o borçlu yönünden değerlendirilmelidir. Diğer davalıların hakkında aciz vesikası alınmasına gerek yoktur. Yargıtay kararlarına göre davacı, dava dilekçesinde aciz belgesini alıp mahkemeye sunmak zorunda değildir. Yargıtay aşamasında dahi bu vesika mahkemeye sunulabilir. Borçlunun adresinin bilinmediği durumlarda, Yargıtay’a göre borçlunun terk ettiği adreslerine gidilir ve borçlunun sürekli adres değiştirdiği tespit edilir ise artık borçlu hakkında fiilen haciz yapılması mümkün olmadığından bulunan adreslerinde yeterli veya hiçbir mal bulunamaması durumunda borçlunun aciz halinde olduğu kabul edilir ve bu gibi aciz vesikasının sunulmasına gerek yoktur. Ayrıca bazı özel düzenlemeler gereği bazı kişilerin bu davayı açarken aciz vesikası sunmaları gerekli değildir. Örneğin, iflas idaresi tarafından açılan davalarda borçlu zaten iflas etmiş olduğu için borçlu hakkında aciz belgesi ibrazına gerek yoktur. Aynı şekilde Devletin açtığı iptal davalarında da aciz vesikası ibraz edilmesine gerek yoktur.
Enforcement Proceedings Must Be Finalized
Enforcement proceedings have been made against the debtor and the follow-up has been finalized, which is a special case condition accepted by the Supreme Court in cases of annulment of disposition. If there are lawsuits for the annulment of the objection or the annulment of the objection, it is decided by the court hearing the action for the annulment of the disposition to make a pending issue in the action for the annulment of the disposition. The condition sought by the Court of Cassation is that the negative declaratory action should be filed before the action for annulment of disposition.
Although there are contrary opinions in the doctrine, according to the Supreme Court, if the date of birth of the debt is based on the post-delivery of the debt, the case should be dismissed procedural. So when is the debt considered born? If a person has a right to receivable based on a check, if the check price is not paid when the time comes, if the creditor intends to file an action for annulment about the goods missed by the debtor, the debt is deemed to have arisen on the issue date of the bond, when the check is presented to the bank here. Since bills and cheques are often arranged to pay the existing debt as a result of the previous basic relationship, this basic relationship is investigated in the follow-ups based on checks and bonds, and the debt is deemed to have arisen on the date this basic relationship is established. In the receivables arising from the invoice, the date of the invoice is checked. According to the Court of Cassation, the date of birth of severance pay and notice pay is accepted as the date of employment of the worker in labor claims. In this direction, the workers’ way has been opened for the cancellation of the savings. If the date of birth and the date of disposal of the claim are on the same date, the Court of Cassation does not have a settled case-law. According to one view, if the date of birth of the savings and the debt is the same, it would be fair to decide to hear the action for annulment of the savings.
Defendant of Action for Cancellation of Disposition
The defendants of the action for the annulment of the disposition brought in accordance with the Enforcement and Bankruptcy Law are primarily the debtor and the person who has taken over the movable or immovable from the debtor. If the debtor or one of the persons who have taken over the movable or immovable subject to the lawsuit from the debtor is not shown as the defendant at the time of filing the lawsuit, the court will give the creditor time to remedy this deficiency. The debtor and the third person who takes over the movable or immovable from the debtor is the obligatory colleague. (In case they are dead, their heirs may also be in the position of defendant in the case.) If the subject property is transferred from a third person to a fourth person, the fourth person cannot be included in the case if it is in good faith. If the plaintiff cannot prove that the fourth person is in bad faith, he should not ensure that the fourth person is included in the proceedings, otherwise this person will have to cover the attorney’s fee and litigation expenses, since this person is unfairly faced with the lawsuit.
In case the action for annulment of disposition is filed based on collusion pursuant to Article 19 of the BK, the defendants of the action for annulment of disposition, the debtor and the third party to whom the debtor has transferred the immovable or movable; If these people are dead, they are their heirs.
Situations where an action for annulment can be filed
The situations in which the action for annulment of savings can be filed are regulated in Articles 277 et al. of the Execution and Bankruptcy Law. The principle of interpretation in favor of the creditor is valid in cases of cancellation of disposition. The inheritance division agreement between the heirs is a contract that is frequently the subject of annulment action. When the assets with low value are allocated to the debtor with the inheritance division agreement, the creditor has the right to sue for the cancellation of this inheritance division agreement. Transferred company shares, transferred inheritance shares, immovable sales promise agreements strengthened by annotation in the title deed, movable and immovable transferred in accordance with the divorce protocol, transactions of debtors regarding the rejection of inheritance, contracts of care until death made by the debtor, the debtor’s refusal to file a criticism case, even though the debtor is not actually indebted Establishing a mortgage on the immovable property, the debtor’s failure to object to the payment order regarding the receivable of another creditor, although he is not actually a debtor, may be subject to an action for annulment of disposition. According to the dominant view in the doctrine, there is no need or possibility for them to be the subject of annulment lawsuits, since collusive transactions are invalid. In the opinion of the Court of Cassation, an action for annulment may be filed for the annulment of the collusive transactions. There is ease of proof for the creditor in cases of cancellation of disposition. In cases of annulment based on collusion, there is no need to submit a certificate of insolvency. While actions for annulment of disposition are subject to a 5-year statute of limitations, lawsuits for annulment of disposition based on collusion can be filed at any time, regardless of time.
In the concrete case, if the debtor first found savings and then became indebted, an action for annulment can be filed according to article 19 of the UK.
An action for annulment of disposition can also be filed for transactions that are concealed under a pseudonym. Persons who hide the debtor’s name and act on the debtor’s account, on their own behalf, are called pseudonymous.
Assignment transactions of the debtor that are not based on a real receivable and debt relationship may also be subject to an action for annulment of disposition.
In terms of forced enforcement sales, if the debtor’s property is sold is a collusive receivable, if the person who made the purchase as a result of the sale is a relative of the debtor and does not have the financial situation to buy the sold item, this sale may be cancelled.
The transaction that will be subject to an action for annulment must be a transaction with economic value. If the transaction has no economic value, it is impossible to file an action for annulment.
An action for annulment of disposition can also be filed for the transfer of the hospital operating license.
The cases in which an action for annulment can be filed are regulated in EBL m.278,279 and 280.
The nullity of gratuitous dispositions: Article 278 – (Amendment: 18/2/1965-538/114 art.) With the exception of customary gifts, receivables that are accepted to the table or that are the reason for foreclosure or bankruptcy due to insolvency or the opening of bankruptcy due to the absence of property to be seized. All donations and gratuitous dispositions made during the period backwards to the date when the oldest one was established are void. However, this period cannot exceed the two years preceding the foreclosure, insolvency or bankruptcy. The following savings are like donations.
(Amendment: 9/11/1988-3494/53 art.) Husband and wife and procedure and family, (Cancelled statement: Constitutional Court dated 11/7/2018 and M.: 2018/9, K.: 2018/ With its Decision No. 84.)(1) (…)(2) relatives up to the third degree (including this degree) by marriage, modest dispositions made between the adopter and the adoption,
Contracts in which the debtor accepts a very low price as an imposition, according to the value of what he has given at the time of the contract,
Contracts in which the debtor establishes the right of income and usufruct on the condition of life, and the contracts of care until death, for the benefit of himself or a third party,
The legislator accepts that a savings made by the debtor can be canceled within a certain period of time due to the security of the transaction. If a foreclosure action has been made against the debtor, the debtor’s bankruptcy has been decided or a certificate of insolvency has been obtained, the cancellation of the transactions made within two years from the attachment, insolvency or bankruptcy may be requested.
The customary gifts will be evaluated according to the concrete event by looking at the economic situation of the debtor.
The savings between the debtor’s relatives up to the third degree and between the adopter and the adopter are subject to cancellation. According to the 2018 decision of the Constitutional Court, a transaction between the debtor and his sibling may be subject to an action for annulment, but if the sibling who took the debtor’s property claims that the indebted sibling’s assets are not in a position to meet the debt, this sibling should be given the opportunity to prove that he did not know that he made this sale with the intent to harm the creditors. . This possibility of proof has been recognized only for transactions between siblings by the decision of the Constitutional Court. In practice, it is generally thought that if siblings living abroad buy property from their relatives, this situation may not be subject to an annulment action. If the debtor’s relatives listed in the law have transferred the property to the fourth person, in this case, the relationship is not taken into account.
If there is a clear disproportion between the considerations, a clear disproportion (one double or more) between the price shown in the official document and the actual value of the thing at the time of sale is also a reason for cancellation. Disproportionateness is also taken into account only in terms of sales about the debtor and the third party. For example, if the third person who bought the goods sells the goods to the fourth person for a price that would constitute a clear disproportion, in this case, an action for annulment cannot be filed.
Insolvency due to insolvency: Item 279 – If the following savings are made by a debtor who has not paid his debt, within a year before the insolvency or bankruptcy due to foreclosure or lack of property, it is still void:
1 – Pledges made by the debtor to secure an existing debt, except in cases where the debtor has previously committed to provide security;
2 – Payments made in a non-monetary or customary form of payment;
3 – Payments made for the debt that is not due.
(Annex: 9/11/1988-3494/54 art.) Annotations given to the title deed in order to strengthen personal rights. If the person benefiting from these savings proves that he does not know the state of the debtor (that he is in debt), the action for annulment is not heard.
1- If the debtor does not undertake to provide collateral while borrowing, if he establishes a mortgage in favor of a creditor, this transaction is subject to cancellation since this situation creates inequality for other creditors.
2-The fact that the debtor gives his movable or immovable property as a deduction for his debt constitutes a reason for cancellation. According to the Court of Cassation, if the bank has a mortgage on the given immovable and there is no exorbitant difference between the sale price and the real value, this is considered a habitual payment for banks.
EBL article 280 is the article that regulates the cancellation of fraudulent dispositions made with the intention of harming the creditors. All transactions of the debtor, whose assets are not sufficient for his debts, with the intention of harming his creditors, are canceled in cases where there are clear indications that the financial situation of the debtor and the intent to harm are known or required to be known by the other party of the transaction. If the third party claims and proves that he does not know the financial situation of the debtor, the savings cannot be canceled. Here, the lawsuit must be filed within 5 years following the disposition of the debtor with the intent to smuggle property. The debtor must act with the intention of harming his creditors, and the third party must not be in good faith. It is proved by the creditor that the third party is not in good faith, with approximate proof rules. According to the Supreme Court, the debtor’s accountant or lawyer is one of the people who can know his financial situation. The existence of a commercial relationship between the defendants also indicates that they can know each other’s financial situation, according to the Supreme Court. The fact that the defendants are friends in the media environment does not require the acceptance of the annulment action.
According to the Court of Cassation, the plaintiff’s filing an action for annulment pursuant to Article 278 does not prevent the Court from carrying out an examination pursuant to Article 279 or Article 280.
The creditor can prove that the debtor acted with the intention of harming the creditor with all kinds of evidence or approximate proof rules.
If the debtor sells more than one immovable and movable property on the same day, the debtor’s 7 parcels, together with the hotel and outbuildings, are transferred to another defendant company through a notary public, the debtor sells 10 vehicles to one person and 7 vehicles to another person on the same day, the debtor sells 8 vehicles on the same day. selling an independent section, the third party being the accountant of the debtor’s spouse, all of the defendants are in the food sector, the debtor’s continuation of residence despite the sale, the third, the immovables subject to the disposition continue to be used by the debtor’s family, the third person and the debtor are located in the same small district, It is one of the examples that are considered contrary to the ordinary flow of life and evaluated as a reason for cancellation.
In the decision of the General Assembly of Law dated September 14, 2021, “A person sells his real estate to another person and takes his money, realizes that there is an increase in value in the real estate after a while and asks the person who bought the real estate to pay him a little difference. Disturbed by this situation, the seller issues a promissory note of 110,000.00 TL to his brother. His brother initiates enforcement proceedings against his brother, who is in debt. After the follow-up is finalized, foreclosure is duly brought and the state of insolvency is determined. After all these, an action for annulment is filed against the real estate by the creditor brother. The local court decides to cancel the savings. “The 17th Civil Chamber of the Court of Cassation, the decision of the local court, the need to investigate what kind of relationship there is between the plaintiff creditor and the defendant debtor that causes the debt subject to follow-up, from which bank the 110,000,00 TL money was paid (in accordance with this decision, the case cannot be dismissed with the defense that the money was given by hand), Investigation of whether the plaintiff has the financial power to lend such a high amount of money, when necessary, to investigate the economic conditions of the third party and the debtor defendant, if it is concluded that the claim is real, to investigate whether there is a state of insolvency and to evaluate the situation with all the evidence gathered thereafter. . it is said. The General Assembly found the justification for annulment of the decision of the 17th Law Office.
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