WHAT IS A CANCELLATION OF DISPOSITION LAWSUIT?
The action for cancellation of disposition is a type of lawsuit filed by the creditor, who cannot collect his receivable from the debtor through enforcement proceedings, against the debtor and the third party who took over the property in order to cancel the disposals made by the debtor with the intention of evading property regarding real estate or movable property within the last 5 years.
The action for cancellation of disposals is regulated under Article 277 and the following articles of the EBL.
WHO ARE THE PARTIES IN CANCELLATION OF DISPOSALS CASES?
In Article 277 of the EBL, it is stated “by whom” an action for cancellation may be filed. 277, and “against whom” the cancellation action may be filed is regulated under Art. 282. There are at least three parties in the cancellation of savings cases, and the creditor who cannot collect his/her receivables through execution proceedings and obtains a certificate of insolvency against the debtor becomes the plaintiff. The debtor, who transfers his goods by acting with the motive of evading the creditor, is included as a defendant. The third party who holds the property subject to the cancellation of disposition lawsuit and who transfers the property between the defendant debtor and the defendant debtor is the defendant third party / defendant in the lawsuit.
CONDITIONS OF THE CANCELLATION OF DISPOSITION LAWSUIT
a) In order to file an action for cancellation of disposition, firstly, there must be a real debt relationship between the creditor and the debtor. Since the action for cancellation of disposition shall be brought against the debtor and the third party who has taken over the property from the debtor, it is intended to protect the legal security of the third party. If the debt relationship between the plaintiff creditor and the defendant debtor is not based on a real legal relationship, an action for cancellation of the disposition cannot be filed.
In order to determine whether the assignment disposition subject to the lawsuit is related to a real debt payment, all of the tender documents dated 16.2.2009 (contract, progress reports, payment documents, issues such as whether the tender work in question can be done by the subcontractor) between the defendant debtor and the non-suit … Orphanage Dormitory were requested from the relevant administration, and the defendant debtor O. the defendant debtor O., the defendant S. and the non-complaint company that the defendant S. stated that he was the manager of (after the commercial registry records are requested and the defendant S.’s connection with the said company is determined), the commercial books should be examined by a financial advisor or accountant expert and a report should be obtained…” (17. HD. 11.03.2013 T. 14091/3212).
b) The debtor must have a final or temporary certificate of insolvency; a certificate of insolvency must be obtained for the debtor of the receivable subject to enforcement proceedings. However, a certificate of insolvency is not required at the stage of filing the lawsuit. The certificate of insolvency is one of the conditions of the lawsuit that can be substituted later. The creditor, i.e. the plaintiff in the cancellation of disposals case, may submit the certificate of insolvency to the court at any stage of the case, including the appeal process. The plaintiff, who submits the provisional certificate of insolvency at the beginning of the case, must then submit the final certificate of insolvency to the file. The sequestration report showing that the debtor has no attachable property also replaces the certificate of insolvency.
No final or provisional certificate of insolvency has been submitted to the file. In this case, it was not correct to decide to accept the case as a result of incomplete examination and research, while the court should decide to dismiss the case due to the failure to submit a final or temporary certificate of insolvency, which is a condition of the lawsuit (Y17. H.D. Esas No: 2012/2516 Karar No: 2013/224 K.).
c) The execution proceeding initiated against the debtor must be finalised; if the person against whom the execution proceeding is initiated objects to the execution proceeding or if he/she is not duly notified, it is not possible to file a lawsuit for cancellation of disposition against the debtor over the execution proceeding in question, since the execution proceeding cannot be finalised.
d) In order to file a lawsuit for cancellation of disposition based on Articles 277 and following of the Enforcement and Bankruptcy Law, the disposition requested to be cancelled must be made after the date of birth of the debt subject to enforcement proceedings.
In order for the cancellation of dispositions to be heard, the birth of the debt before the disposition requested to be cancelled is a prerequisite for the lawsuit and must be investigated by the court ex officio. If the condition of the lawsuit is not fulfilled, a judgement cannot be made on the merits of the case. In the concrete case, the debt subject to the lawsuit for the defendant debtor Rüstem was born with the loan agreement signed with the out-of-court bank, as similarly accepted in the decision of the Supreme Court of Appeals General Assembly of Civil Chambers dated 13/10/2010 and numbered 2010/17-398 Main and 2010/497 Decision, and it is possible to file a cancellation lawsuit for debtor disposals after this date. (HGK -K.2015/1759)
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