Determination Of The Amount Of Receivables That Can Be Claimed From The Heirs By Deducting The Collections Made By The Plaintiff Bank In The Out-Of-Case Follow-Ups Mentioned In The Petitions
T.C. JUDICIARY
19th Civil Chamber
Main article: 2015/18400
Decision: 2016/10603
Date of Decision: 14.06.2016
ANNULMENT OF OBJECTION – THE AMOUNT OF RECEIVABLES THAT CAN BE CLAIMED FROM THE HEIRS SHOULD BE DETERMINED BY DEDUCTING THE COLLECTIONS MADE BY THE PLAINTIFF BANK IN THE OUT-OF-COURT PROCEEDINGS MENTIONED IN THEIR PETITION – INCOMPLETE INVESTIGATION – REVERSAL OF THE JUDGMENT
SUMMARY: While the claimant bank’s receivables from the principal debtor as of the date of death of the heir of the defendants should be determined by conducting an on-site examination on the bank records through an expert expert expert, and the amount of receivables that can be claimed from the heirs should be determined by considering that the murisin is a guarantor and by deducting the collections made by the claimant bank in the out-of-case proceedings mentioned in their petition, it was not deemed correct to make a decision with incomplete examination.
(4721 S. Code Art. 605)
Case: At the end of the trial of the cancellation of the objection case between the parties, the file was examined, upon the appeal of the judgment given for the acceptance of the case for the reasons written in the judgment by the attorneys of the defendants within the period, the file was examined, the necessity was discussed and thought.
The plaintiff’s attorney stated that the defendant debtors’ murisi … that he was a joint guarantor in the general loan agreements dated 14/04/2008, 16/04/2008 and 16/07/2008 between his client and the bank, that due to the non-payment of the loans, proceedings were made against the non-suiting company by way of foreclosure of the mortgage and for the remaining balance, proceedings were made against the defendants from the file numbered 2011/1176 of Safranbolu Enforcement Directorate, However, upon the objection of the defendants, the proceedings were stopped, the defendants did not reject the inheritance within the time limit, and since the insolvency of the deceased was not clearly evident at the time of the death of the deceased, the objections of the defendants were unwarranted, and requested and sued for the annulment of the objections and the award of 40% execution denial compensation against the defendants.
The attorneys for the defendants stated that although their clients did not reject the inheritance within the legal period, the inheritance was forfeited due to the indebtedness of the estate, that the deceased did not have the capacity to act when he signed the loan agreements as a guarantor, that the debt of the deceased guarantor should be calculated on the date of death, not on the date of the account fold, and that the debt of the deceased guarantor should be calculated on the date of death, not on the date of the account fold, in accordance with Article 630 of the CC. Pursuant to Article 630 of the Civil Code, he argued that his clients would be liable for the debt in proportion to their liquidation shares as a result of the liquidation of the inheritance according to the provisions of bankruptcy, and requested the dismissal of the lawsuit.
As a result of the trial conducted by the court, in the report received from the Forensic Medicine Institution in terms of the capacity of the deceased to act as of the dates of the signing of the loan agreements; it was stated that there were no medical findings or documents that would detect any malfunction in the deceased on 14/04/2008, 16/04/2008 and 16/07/2008 when the loan agreements were signed, and that the deceased had the capacity to act on the dates of the signing of the loan agreements, and again, letters were written to various banks and institutions in order to determine the forfeiture of the inheritance stipulated in Article 605/2 of the TMK and whether the estate was insolvent.
In order to determine the situation of forfeiture of the inheritance stipulated in Article 605/2 of the TCC and whether the estate is insolvent or not, letters were written to various banks and institutions, the receivables and debts on the date of death were determined and an expert report was obtained, and in the report received; the total assets of the deceased as of the date of death amounted to 88. 727,84 TL and the total of liabilities was 135.871,14 TL and that his estate was insolvent, however, after the death of the deceased, the defendants applied to the Ankara Tax Office Directorate and submitted an inheritance and transfer tax declaration and the deceased’s one immovable property, private pension life insurance and receivables from the non-suit …
In this respect, the defendants acted within the scope of the ownership of the estate immediately after the death of the deceased, and after the emergence of the debt situation arising from the fact that the deceased was a guarantor, they wanted to forfeit the inheritance, and in this regard, the precedent of the 2nd Civil Chamber of the Court of Cassation 2012/17092 E.-2013 /9247 K. numbered; “….although the estate is in debt; the heir who intervenes in the transactions of the estate, conceals or appropriates the estate property to himself, as described in Article 610/2 of the Turkish Civil Code, cannot reject the inheritance. “, in this case, the defendants filed an inheritance and transfer tax declaration and the estate was managed by the defendants until the date of the processing of the follow-up file subject to the lawsuit, this situation in itself is contrary to the principle of good faith stipulated in Article 2 of the TMK, and the case law of the 2nd and 8th Civil Chambers of the Court of Cassation.
For this reason, it is accepted that the heirs who act within the scope of the ownership of the inheritance cannot go for the forfeiture of the inheritance after the emergence of the debt related to the inheritance, It was decided to cancel the objection of the defendants to the Safranbolu Enforcement Directorate’s file numbered 2011/1176, to continue the proceeding, to collect the 40% execution denial compensation to be calculated over the amount of the actual receivable since the receivable is liquid, and to pay it to the plaintiff, and the judgment was appealed by the attorney of the defendants.
1- According to the writings in the file, the evidence on which the decision is based, the reasons for the decision, and the appreciation of the evidence, the other appellate objections of the defendants’ attorneys other than the scope of the following paragraph should be rejected.
2- While the claimant bank’s receivables from the principal debtor as of the date of death of the heir of the defendants should be determined by conducting an on-site examination on the bank records through an expert expert, and the amount of receivables that can be claimed from the heirs should be determined by considering that the murisin is a guarantor and by deducting the collections made by the claimant bank in the out-of-case follow-ups mentioned in their petition, it was not correct to make a decision in writing with incomplete examination.
Conclusion For the reasons explained in subparagraph (1) above, the other appellate objections of the attorneys of the defendants are rejected, for the reasons explained in subparagraph (2) above, the judgment is DISMISSED in favor of the defendants, the advance fee may be refunded upon request, it was unanimously decided on 14.06.2016.
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