The Burden Of Proof Is On The Defendant Creditor In Lawsuits Objecting To The Order List Based On Alleged Collusion
T.C. JUDICIARY 23RD CIVIL CHAMBER E. 2013/8006, K. 2014/832, T. 6.2.2014
CASE : At the end of the trial of the case of objection to the order list 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 defendant’s attorney within the time period, and the file was examined, the necessity was discussed and thought.
DECISION : The plaintiff’s attorney claimed that the defendant’s receivable was placed in the first place and the client’s receivable was placed in the third place in the order list prepared for the distribution of the money sent to the enforcement file after the sale of the immovable belonging to the non-suit debtor by way of the elimination of the partnership, whereas the defendant’s receivable is collusive, and the bond alone is not sufficient to prove the existence of the receivable, and that the share allocated to the defendant in the order list is primarily the share of Konya 12th. Execution Directorate’s file numbered 2009/7887 E., and requested and sued for a decision to cancel and/or correct the order list in this way.
The defendant’s attorney defended that construction materials were sold to the debtors out of the lawsuit, bonds were taken due to these sales, invoices were issued for the goods subject to the sale, and the receivable was real, and requested the dismissal of the lawsuit.
The court, according to the claim, defense, the adopted expert report and the entire file scope; in accordance with the nature of the case and Article 6 of the TMK, the defendant is entitled to sequestrate the amount of 152.000,00 TL specified in the promissory note dated 20.02.2009 and 20.03.2009, which is the basis of the enforcement proceedings. 000.00 TL, the defendant should prove that it is a creditor from the debtor who is the drawer of the promissory note on the date of attachment, and as a result of the examination of the company books by an expert in accordance with the request of the defendant, who did not submit any document other than the promissory note, it was concluded that although there is a legal relationship between the defendant and the debtor, the defendant has never been a creditor from the debtor as much as 152. 000,00 TL from the debtor, according to the company records, it was stated that there was a receivable of 53.429,49 TL as of the date of the proceeding, and on the grounds that the defendant could not prove its claim regarding the receivable based on the proceeding, it was decided to accept the case, from the share allocated to the defendant in the order table, first of all, to pay the plaintiff’s receivable in the follow-up file numbered 2009/7887 Esas of Konya 12th Execution Directorate, and to pay the remaining part to the relevant persons according to the current order table.
The decision was appealed by the defendant’s attorney.
1- The case is related to the objection to the order list based on the ground of collusion. In cases of objection to the order list based on the ground of collusion, the claim, as a rule, is that the debtor and the defendant creditor aim to evade property from other creditors by creating a contractual (collusive) debt relationship. For this, the date of the collusive transaction according to the obligatory transaction is important. The burden of proof is on the defendant creditor in cases of objection to the order list based on the allegation of collusion. The defendant must prove the existence and amount of the receivable with the documents issued before the proceedings and other documents in accordance with the procedure. In order to be able to speak of collusion, as a rule, the receivable claimed to be collusive must have arisen later than or close to the receivable from which it is claimed to have been evaded, in other words, as a rule, the collusive disposition must bear the date after the debiting transaction made in favor of the other creditor.
In the file numbered 2009/7887 Esas of Konya 12th Execution Directorate, where the plaintiff is a creditor, it is understood that a precautionary attachment decision of Konya 1st Commercial Court of First Instance dated 04.08.2009 and numbered 2009/1749 D. İş was taken and a proceeding was initiated on 04.08.2009, based on a bond dated 18.12.2008 and due on 20.03.2009 with a value of 26.000,00 TL, through attachment for bills of exchange.
In the file numbered 2009/4214 Esas of Konya 6th Execution Directorate, where the defendant is the creditor, it is understood that a precautionary attachment decision of Konya 2nd Commercial Court of First Instance dated 07.04.2009 and numbered 2009/959 D. İş was taken on 07.04.2009, and on 07.04.2009, a proceeding was initiated by way of attachment through bills of exchange based on the bond dated 20.02.2009 and due on 20.03.2009 with a value of 152.000,00 TL. According to Article 299 of the Code of Civil Procedure in force on the date of the lawsuit, the latest date on which the bond dated 20.02.2009 can be issued is 07.04.2009, the date on which the defendant took a precautionary attachment decision and started the enforcement proceedings, and considering that this date is before the plaintiff’s follow-up date and that the defendant’s commercial books confirm the TL 53,429.49 portion of the receivable, it should be accepted that the defendant’s receivable is a real receivable. In this case, while the court should have decided to dismiss the lawsuit, it was not correct to decide to accept the lawsuit on the grounds that although there was a legal relationship between the defendant and the non-suit debtor, the defendant never had a receivable of 152.000,00 TL from the debtor and the defendant could not prove the receivable.
2-According to the acceptance; in the complaints against the order list, the Enforcement Court is in charge of finalizing the complaints before it and instructing the execution manager in this direction, and in the new order list to be prepared, it should specify the principles according to which the order list will be organized, in other words, it should determine in which rows the creditors should be placed for what amount, show the parts that are not in accordance with the law, and instruct the execution manager to take action within this framework (Art. 17 of the EBL). /I), it should be sufficient to state the reasons for annulment in the justification and decide to annul the order list.
In the cases of objection to the order list in proceedings by way of foreclosure, pursuant to Article 235/3 of the EBL, which should be applied by analogy, it should be decided not to cancel the order list, but to pay the share allocated to the defendant to the plaintiff first, including the judicial expenses and attorney fee, and if there is a surplus, it should be left to the defendant. The judgment rendered at the end of the lawsuits objecting to the order list shall have consequences only for the parties to the lawsuit, and the acceptance decision and the determination of the situation shall not be satisfied with the determination of the situation, and a judgment of performance shall be established. Although the court has established a judgment of performance, the phrase “from the share allocated to the defendant, first of all, to pay the plaintiff’s receivable in the file numbered 2009/7887 of Konya 2nd Execution Directorate, and to pay the remaining part to the relevant parties according to the current order list” in paragraph 1 of the judgment paragraph does not comply with and meet the aforementioned provision and is of a nature to cause hesitation in execution.
CONCLUSION : For the reasons explained in subparagraph (1) above, it was unanimously decided on 06.02.2014 to accept the appellate objections of the defendant’s attorney and to VACATE the judgment in favor of the defendant, to refund the advance fee upon request, to be open for correction of the decision within 15 days after the notification of the decision.