Mortgagor’s Right Of Recourse To Sureties
T.C. JUDICIAL COURT 19TH CIVIL CHAMBER E. 2017/4585, K. 2018/1831, T. 4.4.2018
* SUSPECIATION FOR REVOCATION OF OBJECTION ( Request for Recourse Recovery of the Defendant’s Loan Debt from the Principal Debtor and Sureties due to the Mortgagor’s Payment of the Loan Debt – Since the Mortgagor has no Right of Recourse to the Sureties for the Losses Suffered by the Mortgagor due to the Foreclosure of the Mortgagee’s Immovable Property Pursuant to the Code No. 818, the Judgment Should be Reversed )
* RIGHT OF REPUBLICATION OF THE LENDER TO THE GUARDS ( The Plaintiff mortgaged his immovable property in favor of the Defendant due to the General Loan Agreement of the Defendant – It should be concluded that it is not possible to claim the damages incurred as a result of the foreclosure of the mortgaged immovable property due to non-payment of the debt from the guarantors)
* GENERAL LOAN AGREEMENT ( The Plaintiff Signed the Agreement as the Mortgagor and the Immovables were Sold by Forced Execution – The Execution Proceedings initiated by the Mortgagor against the Principal Debtor and the Sureties for the Damage Suffered by the Mortgagor are Objected to / The Decision to Accept the Case is Erroneous since it is Not Possible to Make a Claim for the Sureties )
* THE EFFECTIVENESS OF THE CODE NUMBER 818 ON THE DATE OF THE CONTRACT (The immovable mortgaged in favor of the Defendant Borrower under the General Credit Agreement was converted into money – Since the applicable provision of the CODE does not provide recourse to the sureties, the decision to accept the case in terms of the sureties is inappropriate / Request for Cancellation of the Objection)
818/m.109,496
2004/m.67
4721/m.884
6098/m.596
6100/m.294,297
SUMMARY : The lawsuit is related to the request for the cancellation of the objection to the proceeding initiated for the recourse collection of the paid amount from the principal debtor defendant and the guarantors and other defendants due to the payment of the loan debt of the defendant by the mortgagor plaintiff.
As of the date of the signing of the general loan agreement subject to the lawsuit and the establishment of the mortgages, the law that should be applied to the case is the Code No. 818, and there is no regulation regarding the pledge in the provision of the Code, which is the equivalent of the regulation in the 6098 S.K. It is seen that Article 109 of the Code of Civil Code and Article 884 of the TMK, which should be applied, do not give the plaintiff a right of recourse in respect of the defendant guarantors.
Although it is possible for the plaintiff mortgagor to claim from the defendant, the principal debtor in whose favor the mortgage was granted, for the damages incurred due to the foreclosure of the mortgaged immovables, it is not possible to claim against the sureties; therefore, it is necessary to make a decision of acceptance in terms of the defendant principal debtor and its sureties.
LAWSUIT : At the end of the trial held in accordance with the reversal of the cancellation of the objection between the parties, the judgment given for the partial acceptance of the case for the reasons written in the judgment was appealed by the attorneys of some of the defendants with a hearing, and a summons was sent to the relevant parties. On the certain day, the plaintiff’s attorney and some of the defendants’ attorneys came, the hearing was started and after the oral explanations of the lawyers present were heard and it was understood that the petition for appeal was in due time, the file was examined, the necessity was discussed and thought:
DECISION : The lawsuit is related to the request for the cancellation of the objection to the proceeding initiated for the recourse collection of the paid amount from the principal debtor defendant company and guarantors other defendants due to the payment of the loan debt of the defendant company by the mortgagee plaintiff.
The defendant’s attorney requested the dismissal of the lawsuit.
The court, according to the evidence collected, the plaintiff mortgaged his immovable in favor of the defendant company, the immovable belonging to the plaintiff was sold as a result of the proceeding due to the defendant company’s failure to pay its debt, and the other defendants were joint debtors and joint sureties to the debt of the debtor company to the bank, It was decided to accept the lawsuit on the grounds that the plaintiff signed the loan agreement only as a pledgor and that he could claim the entire amount he paid from the defendants, and to award the plaintiff the denial compensation at the rate of 20% of the original receivable from the other defendants, except for the heirs of one of the defendants, and the judgment was appealed by the attorneys of the parties, and the Chamber’s decision dated 07. 06.2016 day 2016/4114Esas- 2016/10269 Decision numbered; “Although the court stated in the justification part of the judgment that the plaintiff’s request for cancellation of the objection and 40% execution denial compensation was accepted in its entirety by stating that ‘the judgment was rendered as follows regarding the acceptance of the case’, in the paragraph of the judgment, it was decided to collect the 20% execution denial compensation in favor of the plaintiff from the defendants other than the heirs of one of the defendants, and due to this contradiction between the judgment and the justification in terms of the execution denial compensation, it was decided to collect the 20% execution denial compensation from the defendants other than the heirs of one of the defendants. It was necessary to decide to overturn the judgment in accordance with Articles 294 and 297 of the Code.”
As a result of the trial conducted by the court in compliance with the reversal, the plaintiff mortgaged his immovable property in favor of … T.A.Ş. as collateral for all debts incurred and to be incurred by Kardeşler … Ltd. Şti. Şti. did not pay its debt, the assignment creditor pursued against it and as a result of this pursuit, the immovable belonging to the plaintiff was sold, the other defendants were also joint debtors and guarantors to the debt of the debtor company, and the plaintiff signed the loan agreement only in the capacity of pledgor, The judgment was appealed by the attorneys of some of the defendants, who decided to accept the case on the grounds that it is possible to request the full amount of the amount paid from the original debtor and co-debtors of the loan, but to reject the excess claim for execution compensation, since it can request 20% of the execution denial compensation as of the date of the follow-up and lawsuit.
The loan agreement between the defendant bank and the defendant loan customer and guarantors is dated 06.07.2007 and this agreement was signed by the plaintiff as a mortgagor and then mortgages were established on three immovables on 27.07.2007, 30.05.2008 and the mortgaged immovables were sold and converted into money as a result of forced execution.
The TCO No. 6098 entered into force on 01.07.2012 and the Code of Obligations No. 818 was in force on the date the general loan agreement was signed and the mortgages were established. In accordance with Article 1 of the Law No. 6101 on the enforcement and application of the Turkish Code of Obligations, the Code of Obligations No. 818 should be applied in the concrete case. In this respect, 596/1-4 of the TCO cannot be applied in the concrete case. Article 496 of the Code of Obligations, which is the equivalent of Article 596 of the TCO, which should be applied to the case, does not contain a regulation on pledge. Again, it is seen that Article 109 of the Code of Obligations and Article 884 of the TCC, which should be applied to the concrete case, do not grant the plaintiff a right of recourse in respect of the defendant guarantors. Although it is possible for the plaintiff mortgagor to make a claim against the defendant company, the principal debtor in whose favor the mortgage is given, for the damages suffered due to the foreclosure of the mortgaged immovables, it is not possible to make a claim against the sureties. It was not deemed correct by the court to make an acceptance decision for the defendant principal debtor company and the sureties of the principal debtor, and the decision had to be reversed.
CONCLUSION : For the reasons explained above, it was unanimously decided on 04.04.2018 that the judgment should be reversed in favor of the appellant defendants, the attorney fee of 1.630,00 TL should be taken from the plaintiff and given to the appellant defendants for the benefit of the appellant defendants whose attorney was present at the Supreme Court hearing, and the advance fee should be returned to the appellant defendants if requested.