Request For Removal Of Mortgage (Mortgage On Family Residence)
TO THE JUDGE OF THE … COURT;
THE PLAINTIFF :
ATTORNEY :
ADDRESS :
DEFENDANT :
ADDRESS :
SUBJECT :It consists of our request to remove the mortgage placed on the family residence.
EXPLANATIONS
1-) The defendant, who is the spouse of our client, used a personal loan from the defendant …. Bank on …/…/… date, and in order to constitute the collateral of the loan, a mortgage was established in favor of the bank without the knowledge and consent of our client on the immovable property in the nature of a family residence owned by the defendant spouse, where our client and his spouse have been living together with their joint children since …..
2-) Pursuant to the provisions of Article 194/1 of the Law No. 4721: “One of the spouses cannot terminate the lease agreement regarding the family residence, transfer the family residence or limit the rights on the family residence unless the other spouse has explicit consent.”
This article limits the capacity of the spouses to act on the family dwelling where they live together, even if the family dwelling is not annotated. The limitation is not imposed because the annotation on the family dwelling is placed, but because it already exists. For this reason, even if the title deed is not annotated as a family dwelling, the dwelling is still a family dwelling. Although the mortgage does not directly prevent the right to use and live in the family dwelling, the explicit consent of the other spouse is required for the mortgage transaction due to the danger of disposing of the family dwelling through the malicious and collusive transactions of the right holder spouse. Since the explicit consent of our client has not been obtained, it is not possible to accept that the transaction is valid.
3-) For the reasons explained above, we are obliged to apply to your court for a decision to remove the mortgage placed on our client’s family residence.
LEGAL GROUNDS : 4721 S. K. art. 194
LEGAL EVIDENCES :
1-)…/…/…. Dated loan agreement
2-) Mortgage establishment certificate dated …/../…
3-) Expert examination
CONCLUSION AND REQUEST
For the reasons explained above, we respectfully request and demand on behalf of our client that the mortgage placed on the family residence be removed since it is invalid due to the lack of explicit consent, and that the judicial expenses and attorney’s fee be imposed on the defendant. …/ …/ …
EK:
1-)…/…/…. Dated loan agreement
2-) Mortgage establishment certificate dated …/../…
3-) One approved power of attorney sample
Counsel for the Plaintiff