All Immovables Subject To Collective Pledge Must Be Sold At The Same Time
12th Civil Chamber 2020/1059 E. , 2020/4586 K.
“Case Law Text”
COURT : … Regional Court of Appeal
Upon the request of the debtor to examine the decision given by the Regional Court of Appeal with the above date and number within the due date, the file related to this matter was sent to the department, and after the report prepared by the Examining Judge … for the case file was listened to and all the documents in the file were read and examined, the necessity of the matter was discussed and considered:
In the execution proceeding with judgement through foreclosure of the mortgage initiated by the creditor, in the application made by the complainant immovable owner to the execution court, in addition to the objections to jurisdiction, he claimed that the account floor notice was not notified to all addressees and that the mortgage on his immovable was not removed by the creditor although some mortgages were removed and the proceeding was initiated,
and requested the cancellation of the proceeding; the first instance court sent the debtor a notice of due date in accordance with Article 887 of the TMK. It is seen that the court of first instance decided to cancel the proceeding on the grounds that the debtor was not sent a notice of due date pursuant to Article 887 of the TMK, the creditor applied for appeal, the Regional Court of Justice accepted the request for appeal, the decision of the court of first instance was abolished and the complaint was dismissed.
Immovable pledge is regulated in Articles 850 and following of the Turkish Civil Code numbered 4721. According to Article 850 of the Law, it is clearly stated that the immovable pledge can be established in the form of mortgage or mortgaged deed of debt and revenue bond, and cannot be established in any other way. As can be understood from this statement, mortgage is a type of immovable pledge and is based on the legal relationship of securing the payment of a debt with immovable property. Mortgage is one of the rights pertaining to immovable property. It is possible to allocate more than one immovable to the guarantee of a receivable. This can be achieved through the establishment of a collective pledge or the allocation of the pledge burden.
In Article 855 of the Turkish Civil Code No. 4721 on the subject; “The pledge of more than one immovable for the same debt depends on the fact that the immovables belong to the same owner or owners who are jointly and severally liable for the debt. In other cases where more than one immovable is pledged for the same receivable, the amount for which each immovable constitutes security for the receivable shall be specified when the pledge is established. Unless there is an agreement to the contrary, the land registry office shall ex officio distribute the security to each of the immovables in proportion to their value.”
According to the definition in practice and doctrine, a pledge established on more than one immovable for a single receivable, each of which constitutes security for the entire receivable, without sharing the pledge burden among the immovables, is called a collective pledge (collective pledge – joint pledge, joint pledge=Gesaptpfand). (Köprülü-limited-rights-… 1982- 1983, 2nd edition p.291 et seq.)
As it is clearly stated in the text of the law, this type of pledge can be established in cases where “the ownership of the immovables on which the pledge is to be established belongs to the same person” or “the immovables are owned by different persons, that is, if the owners of the immovables are different persons, these persons are jointly and severally liable for the debt to be secured”. If these conditions do not exist, a collective pledge cannot be established.
The purpose of a collective pledge is to secure a single receivable with more than one immovable property, and there is a legal bond between the pledges established on more than one immovable property, and it is essential for the creditor to collect the receivable within this bond. It should be kept in mind that the pledged creditor can only obtain its receivable once, no matter how much collateral is pledged. Thus, in the event that one of the pledged immovables is converted into cash, if the pledged creditor has collected its receivable, the pledge on the other immovable will no longer be subject to the pledge and will cease to exist. In short, the creditor may request the amount of his/her receivable once. When his/her receivable is fully satisfied, the right of pledge on all immovables must be terminated.
According to Article 873/3 of the Turkish Civil Code No. 4721, “If a pledge is established on more than one immovable property for the same receivable, the creditor is obliged to demand their sale at the same time. However, the bailiff shall sell only as much as necessary”. Accordingly, in the case of a collective pledge, if the mortgage creditor is not paid on the day of the receivable, the creditor is obliged to demand the sale of each of the immovable properties on which a collective (joint pledge) has been established at the same time in accordance with the provision of the law. This obligation is intended to prevent arbitrary behaviour by having the creditor sell the immovable he wants. (HGK.27.11.2002. T, 12-823/1020 K.)
When the concrete case is examined; the creditor bank initiated a judicial proceeding by way of foreclosure of the mortgage against the immovable owners who took over the immovables with the mortgage burden as a result of the fermentation process with the original loan borrower cooperative. According to the examination of the official deeds attached to the follow-up request; it has been seen that a first degree mortgage with a value of 3.000.000,000,00 TL has been established on the 8499 block 5 parcel in favour of … A.Ş. dated 31.01.2014 with the mortgage deed dated 31.01.2014 and numbered 2974, and it has been understood that although the mortgages on the immovables are collective mortgages, no proceedings have been initiated against this immovable.
In this case, the decision of the Regional Court of Appeal to dismiss the complaint by lifting the decision of the court of first instance is inappropriate, and in accordance with Article 353/1-b-2 of the CCP, the reasoning of the decision of the court of first instance should be corrected and the decision should be reversed in order to decide on the cancellation of the proceeding on the grounds that the proceeding was not made against all immovables subject to the joint mortgage in accordance with Article 873/3 of the TMK.
CONCLUSION :
With the acceptance of the debtor’s appeal objections, the decision of the 22nd Civil Chamber of the … Regional Court of Appeals dated 10/12/2019, numbered 2019/720 E. – 2019/2502 K., for the reasons written above, pursuant to Article 373/2 of the CCP No. 6100, which should be applied by referring to Article 364/2 of the EBL amended by the Law No. 5311 (REVERSAL), the prepaid fee to be returned upon request, the file to be sent to the Regional Court of Appeals that issued the decision, it was unanimously decided on 15/06/2020.
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