Supreme Court Decision: Enforcement Proceedings Cannot Be Conducted Through Foreclosure Against A Guarantor Who Is Not The Owner Of The Mortgaged Property
Summary:
Pursuant to Article 149/b of the Enforcement and Bankruptcy Code, mortgage enforcement may be conducted against a debtor cooperative that has mortgaged its own immovable property solely for the purpose of obtaining credit. However, although general seizure may be conducted against third parties who have guaranteed the debt through joint and several suretyship, mortgage enforcement cannot be conducted against them.
T.C.
Court of Cassation
12th Civil Chamber
Case No: 2014/22280
Decision No: 2014/22130
Date: 23.9.2014
Upon the debtors’ request for an appeal review of the court decision dated and numbered above within the specified time limit, the relevant file was sent from the local court to the chamber. After hearing the report prepared by the Review Judge … for the case file and reading and examining all the documents in the file, the matter was discussed and considered:
Although the other appeal objections are unfounded;
The creditor initiated enforcement proceedings without a court order against the principal debtor and mortgage provider, S.S. Kızseki Agricultural Cooperative, and the cooperative members, in accordance with Article 149/b of the Enforcement and Bankruptcy Law, through the conversion of the mortgage into cash, and payment order No. 9 was served on the debtors indicated in the proceedings. In the objection filed by the debtors’ representative at the enforcement office, it was argued that the cooperative legal entity was liable for the loan, and that since they were joint and several guarantors for the debt of the cooperative, which was the principal debtor, as stated in the promissory note dated 24.06.2002, an enforcement proceeding against the mortgaged property could not be conducted on the basis of this guarantee. Upon the objection, the proceedings were suspended. Upon the creditor’s representative’s request to the enforcement court to lift the objection, the court accepted the case and decided to lift the objection on the grounds that the debtors were personally liable for the debt because, in addition to their status as cooperative members, they had also signed the promissory notes as joint and several debtors and guarantors.
In the specific case, a promissory note dated June 24, 2002, and numbered 08506, was signed by the debtor cooperative and the creditor at the Amasya 1st Notary Public Office on June 24, 2002. Ö.. B.., F.. E.., A.. Ç.., A.. K.., and H.. G.. were jointly liable and jointly and severally guarantors. Based on this promissory note, a commitment note dated August 20, 2002, was signed between the parties. Due to this loan, a pledge agreement dated July 26, 2000, with serial number 3367, and June 13, 2001, with serial number 2048, was drawn up at the Land Registry Office on July 26, 2000, with journal no. 3367, and on June 13, 2001, with journal no. 2048, and the immovable property registered in the name of the cooperative, located in Kızseki village, parcel no. 7, was mortgaged in favor of the creditor. It has been understood that the creditor, relying on this mortgage, has included S. M., O.. K.., F.. I.., and A.. G.., solely in their capacity as cooperative members, as debtors in the proceedings, along with the primary debtor cooperative and the cooperative members who guaranteed the debt.
Pursuant to Article 149/b of the Enforcement and Bankruptcy Law, mortgage enforcement can only be carried out against the debtor cooperative that mortgaged its own immovable property in order to obtain the loan. Although enforcement proceedings may be conducted against third parties who are guarantors of the debt through joint and several guarantees by way of general seizure, mortgage enforcement proceedings cannot be conducted against them (Ali Cem Budak, Enforcement by Conversion of Mortgage into Cash, Istanbul 2008, p. 112). Other than these, those against whom proceedings are conducted solely due to their status as cooperative members, without being guarantors, do not have the status of debtors.
In this case, the court should have rejected the request to lift the objection against the debtors other than the Limited Liability Kızseki Village Agricultural Development Cooperative, and the written judgment is incorrect.
CONCLUSION: The appellants’ appeals are partially accepted, and the court’s decision is reversed pursuant to Articles 366 of the Enforcement and Bankruptcy Code and 428 of the Code of Civil Procedure for the reasons stated above. the advance fee shall be refunded upon request, and the right to appeal the decision shall be open within 10 days from the date of notification of the judgment. The decision was made unanimously on September 23, 2014.