Fraud In Vehicle Sales – Taking The Vehicle To The Bank To Pay The Sale Price But Not Paying It – Supreme Court Decision
T.C.
COURT OF CASSATION
4TH CIVIL CHAMBER
E. 2015/9657
K. 2016/10945
T. 8.11.2016
4721/m.989
CASE: Upon the plaintiff’s attorney filing a petition on 07/03/2014 against the defendant requesting the determination and registration of vehicle ownership, the court, after the trial, The defendant’s representative requested that the decision dated 08/04/2015, which accepted the case, be examined by the Court of Cassation with a hearing. Upon notification of the previously determined hearing date of 08/11/2016, the defendant’s representative, who appealed with a hearing, appeared, but the plaintiff did not appear. The open hearing commenced. After deciding to accept the appeal petition, which was found to be timely, and hearing the oral statements of those present, the parties were informed that the hearing was closed. The case file was reviewed. The report prepared by the examining judge and the documents in the file were examined, and the necessary deliberations were made:
DECISION: The case concerns the determination and registration of vehicle ownership. The court decided to accept the case, and the defendant appealed the decision.
The plaintiff claimed that the vehicle, which belonged to him, was taken from him without his consent, that a public case was filed against persons not involved in the case for fraud, that the vehicle was first transferred to … not involved in the case, then to … not involved in the case, and then to the defendant, and that the transfer transactions were invalid, requesting the determination of the ownership of the vehicle as belonging to him and its registration in his name.
The defendant argued that they were a bona fide third party who purchased the vehicle from a dealership and that the lawsuit should be dismissed.
The court concluded that the defendant was acting in good faith. However, when evaluating the situation of the owner, who had the vehicle taken from them against their will, on one side, and the defendant, who purchased the vehicle in good faith, on the other side, the plaintiff’s victimization should be given priority, and the lawsuit was accepted on the grounds that the defendant did not present a defense that the vehicle was purchased from a place such as an auction or a car dealership that sells vehicles.
Article 989 of the Turkish Civil Code, titled “Power of Disposal and Action for Recovery of Movable Property,” states: “A possessor whose movable property has been stolen, lost, or otherwise taken from him against his will may bring an action for recovery of movable property against anyone who has that property in his possession within five years. If this movable property was acquired in good faith from an auction, market, or similar seller, an action for movable property may be brought against the first and subsequent acquirers in good faith only on condition that the price paid is refunded.”
As understood from the text of the article, if a bona fide third party acquires an item that has been taken from its owner without consent at an auction, market, or from a seller of such items, the original owner’s ability to win a restitution lawsuit against this person or subsequent acquirers is subject to a condition. In such cases, the price paid by the bona fide third party to acquire the property must be refunded to them by the plaintiff seeking restitution, i.e., the original owner. If this condition is not met, the court cannot accept the restitution claim filed by the original owner. (Judgment of the General Assembly of the Supreme Court dated 09/25/2002, Case No. 2002/4-608, Decision No. 2002/643)
In the specific case, the defendant stated that he purchased the vehicle in question from a person named …, who is a car dealer, or in other words, from … Automotive; as evidence, he presented the notarial deed of sale dated 04/28/2011 regarding the transfer of the vehicle and the tax registration information of … outside the lawsuit. In a letter dated 24/11/2014 addressed to the court by the Malatya Tax Office, it was stated that …, registered under tax number …, had started trading in automobiles and light motor vehicles in their offices as of 17/07/2009 and that this activity was still ongoing. Therefore, it is understood that the defendant acquired the vehicle from a person selling such goods. On the other hand, the court also accepts that the defendant acted in good faith. There is no claim or evidence to the contrary in the case file. Therefore, the plaintiff can only recover the vehicle from the defendant by paying the price. The court should have ruled to accept the claim for return upon payment of the price; however, the ruling was made without considering this matter, which is not in accordance with procedure and law, and therefore the decision must be overturned.
According to the acceptance, registration is an administrative act, and the decision to cancel the registration in the traffic registry and to decide on a new registration and title is a decision that compels the administration to act. However, in a judicial court, a decision that compels the administration to take action cannot be made. The court should only rule on the determination of ownership; it is also incorrect to decide on the cancellation of the traffic registration record and a new registration and registration.
CONCLUSION: The appealed decision is REVERSED for the reasons stated above, and the court attorney’s fee of TL 1,350.00 awarded to the defendant is to be borne by the plaintiff, and the advance fee is to be refunded if requested. This decision was made unanimously on November 8, 2016.