Floor Account Notice – Foreclosure Of Mortgage – Improper Notification
T.C. JUDICIARY
12TH CIVIL COURT
E. 2016/2889
K. 2016/5851
T. 1.3.2016
– REQUEST FOR CANCELLATION OF EXECUTION
(Since there is no proper account floor notice and the conditions for notice are not met, it is not possible to pursue the complainant mortgagee by sending an enforcement order through foreclosure of the mortgage – Rejection of the Request is Erroneous)
– ACCOUNT FLOOR NOTICE (The Notification Made Is Irregular and Will Not Result in Legal Consequences – Since There Is No Notification of Account Floor Notice in Accordance with the Method and the Conditions for Notification Do Not Occur, It Is Not Possible to Conduct Follow-up Against the Complainant Mortgage Owner)
-FOLLOWING THROUGH MONETIZATION OF THE MORTGAGE (Request for Annulment – Since there is no Notice of Account Fold Notice in accordance with the Method and therefore the conditions for the Notice of Due Notice are not met, the Complainant Mortgagee cannot be followed up by sending an Execution Order through Monetization of the Mortgage)
– IMPROPER NOTICE (The Notification issued on behalf of the Mortgage Debtor and containing the Notice was made with the explanation of the signature of his brother who lives together in the same house – The Notification was Improper as it was made directly to his brother in the capacity of living under the same roof without determining whether the addressee was at the address)
2004/m.150/i
4721/m.887
7201/m.16
SUMMARY : The lawsuit is related to the cancellation of the proceeding. In the concrete case, the notification issued on behalf of the mortgage debtor and containing the notice was made with the explanation “To the signature of his brother who lives together in the same residence”. However, since the notification was made directly to his brother in the capacity of living under the same roof without determining whether the addressee was at the address or not, it is irregular and does not have legal consequences in accordance with Article 16 of the Law No. 7201 and Article 25 of the Notification Regulation. In this case; since there is no notification of the account floor notice in accordance with the method and therefore the conditions for notice (notice of due date) in the sense of Article 887 of the TMK have not been met, it is not possible to pursue the complainant mortgage holder by sending an enforcement order through the foreclosure of the mortgage. In that case, while the court should decide to cancel the proceedings against the complainants, it is inappropriate to establish a judgment for the rejection of the request on written grounds.
LAWSUIT : Upon the request of the parties to examine the above-dated and numbered court decision on appeal within the due date, the file related to this matter was sent to the department from the relevant file, and after the report prepared by the Examining Judge for the case file was listened to and all documents in the file were read and examined, the matter was discussed and considered:
DECISION : Although other appeal objections are not relevant;
In the complaints of the mortgage holder and the main debtor of the loan against the execution proceeding with judgment initiated by the creditor bank by way of foreclosure of the mortgage; it is seen that they demanded the cancellation of the proceeding by claiming that the notification of the account floor notice sent to them was irregular in addition to their other demands, and the court decided to dismiss the complaint on the grounds that the account floor notice should be deemed to have been served and that there was no right to complain since there was no objection to the account floor notice in due time.
Pursuant to Article 150/ı of the BEC; if the lender does not object to the statement of account, the notice for the payment of the debt or the demand for indemnification due to non-cash credit sent by the notary public to the address of the borrower written in the loan agreement or specified in the mortgage contract table, within eight days from the date of notification or deemed to have been notified in accordance with Article 68/b, the amount of debt in the notice becomes final. Pursuant to this article, the notification issued to the address in the loan agreement shall be deemed to have been served even if it is returned. In the concrete case, from the examination of the documents on the basis of the proceedings, the address of the debtor … Ltd. Şti, which is also the debtor’s registry address, is “… Cad. No: 89/7….”, which is also the debtor’s registry address, and the account fold notice was sent to ”… Cad. No: 51/1 …” address, and it is understood that the notification was returned with the annotation that the addressee company moved from the address.In this case, since there is no notification of the account statement in accordance with the method, it is not possible to pursue the complainant debtor by sending an execution order through foreclosure of the mortgage. On the other hand, although there is no obligation to send a statement of account to the third party, the mortgagor immovable property owner, pursuant to Article 150/ı of the BEC; in order to be able to pursue the third party mortgagor, the receivable must be requested from him, i.e. a notice of due date must be sent, pursuant to Article 887 of the Turkish Civil Code. In other words, pursuant to the aforementioned regulation, unless a notice is sent to the third party who is the owner of the mortgaged immovable property, the debt will not be due and payable and enforcement proceedings cannot be initiated against him. It should also be noted that the last sentence of Article 150/ı of the PD Law includes the provision; “The notification or deemed notification of the statement of account, claim for indemnification or notice to the third party who is the owner of the mortgaged immovable property shall be deemed as a payment request as stipulated in Article 887 of the Turkish Civil Code.” In the concrete case, the notification issued on behalf of the mortgage debtor … and containing the notice was made on 09.10.2012 with the explanation “To the signature of his brother … who lives together in the same residence”. However, since the notification was made directly to his brother in the capacity of living under the same roof without determining whether the addressee was at the address or not, it is irregular and does not have legal consequences in accordance with Article 16 of the Law No. 7201 and Article 25 of the Notification Regulation. In this case, since there is no notification of the account floor notice in accordance with the method and therefore the conditions for notification (notice of due date) in the sense of Article 887 of the TMK do not occur, it is not possible to pursue the complainant mortgage holder by sending an execution order by way of foreclosure of the mortgage.CONCLUSION : It was unanimously decided on 01.03.2016, with the partial acceptance of the appeal objections of the debtors, that the court decision is (DISMISSAL) in accordance with Articles 366 of the BEC and 428 of the HUMK for the reasons written above, that the creditor’s appeal objections are not examined according to the reason for the reversal, that the prepaid fee may be returned if requested, and that the way of correction of the decision will be open within 10 days from the notification of the judgment.