Execution Proceedings Through Monetization Of Mortgage
Mortgage Enforcement Proceedings
A mortgage is a type of pledge of immovable property designated to secure an existing or future receivable that is certain or probable to arise in the future.
Principal Mortgage; For receivables whose amount is certain at the time of the establishment of the mortgage,
Upper limit mortgages, on the other hand, are established for receivables whose amount is uncertain but whose future accrual is certain or probable. The type of mortgage varies in terms of monetization and follow-up.
If the mortgage contract table in question contains an unconditional assertion of a certain amount of money debt, enforcement proceedings may be conducted by writ of execution.
However, mortgages realized within the framework of a current account, a loan opening agreement and upper limit mortgages are subject to proceedings without judgment. If the creditor has the necessary documents for judicial proceedings, it is also possible to apply to the proceedings without judgment through foreclosure of the mortgage.
In this type of proceeding, i.e. the proceeding by foreclosure of the mortgage, since the creditor has a certain immovable property as collateral for the receivable, the creditor must first monetize this collateral. Since the creditor will collect its receivable from the sale price of the pledged immovable, there is no foreclosure stage in this type of proceeding.
Execution Proceedings through Monetization of Mortgage
One of the types of non-judicial enforcement proceedings, the non-judicial enforcement proceeding by way of foreclosure of the mortgage starts with a written or verbal enforcement request made by the creditor to the authorized enforcement office. However, the debtor and the owner of the collateralized immovable do not have to be the same person. Therefore, if the debtor and the owner of the immovable property are the same person, the follow-up request should be directed to this person, and if they are different persons, it should be directed to both the debtor and the owner. In cases where the debtor and the owner are different persons, there is a compulsory friendship between these two persons.
On the other hand, the receivable may be secured by multiple mortgages. The creditor must request the sale of all of them. If the pledged immovable is assigned to someone else, there is no change in the debtor’s collateral unless there is an agreement to the contrary. However, if the new owner does not accept the debt subject to the mortgage, he/she is liable only for the immovable property, and if the former owner is the debtor, he/she is personally liable and the proceedings are directed against both of them. If the new owner accepts the debt subject to the mortgage, if the creditor notifies in writing within one year that he reserves his right against the old owner, the proceedings shall be directed to both the old and the new owner. However, if the creditor does not make a written notification within one year, the debtor is released from its debt and the proceedings are directed only to the new owner.
The immovable mortgage creditor submits the official copy of the contract table of the mortgage document issued by the land registry office to the authorized enforcement office or to the enforcement office where the immovable is located, declares the amount of the receivable and requests the enforcement proceeding through foreclosure of the mortgage. The proceeding is organized through general attachment.
The parties to the mortgage agreement or the subsequent purchasers of the mortgaged immovable or their successors are obliged to notify the land registry office of a domestic notification address. Otherwise, the request for registration shall be rejected by the land registry office. Changing the address shall also be effective upon notification to the land registry office. In case the new address is not notified, the date the notifications reach the old address shall be deemed as the date of notification.
A copy of the official deed issued by the land registry office of the mortgage contract table, and if the mortgage is given as collateral for a contract such as a current account or loan agreement, certified copies of this agreement shall be attached to the follow-up request. If more than one mortgage is given for the same receivable, the mortgage contract table for all of them shall be submitted since the creditor has to request the sale of all of them.
If the mortgaged immovable is leased, the execution manager notifies the tenants upon the request of the creditor and without waiting for the finalization of the proceeding and orders the payment of the rents to the execution office. If the tenants do not pay the rents to the enforcement office despite this notification, the enforcement office will be able to pursue against the tenant for the unpaid rent debt.
The execution office notifies the land registry office of the commencement of the proceeding without judgment for the foreclosure of the mortgage. Upon this notification, the land registry office shall annotate the event in the registry of the immovable property. A payment order is also sent to those who acquired mortgaged immovable before the date of the annotation.
The enforcement office, which starts the sale preparations upon the follow-up request, brings the registration samples from the land registry and the latest zoning status of the immovable from the zoning directorate. It appraises the immovable property without waiting for the finalization of the proceedings. This saves time in the monetization of the mortgage. The enforcement office also takes the necessary measures for the administration of the mortgaged immovable.
The debtor or the third party may file an objection within seven days following the notification of the payment order. However, the right of pledge cannot be subject to objection. In such a case, upon notification of the payment order, the debtor may pay the debt at every stage of the proceedings and prevent the sale of the immovable property. After the payment is made, the bailiff shall cancel the mortgage record from the land registry. The third person who is the owner of the immovable property to whom the payment order is sent may also stop the proceedings by paying the debt. In this case, the third party becomes the successor of the creditor and is entitled to recourse. However, the cancellation of the mortgage can only be requested through a lawsuit.