T.R. SUPREME COURT
- Law Office
Basis: 2015/18400
Decision: 2016/10603
Decision Date: 14.06.2016
ACTION FOR ANNOUNCEMENT OF THE OBJECTION – DETERMINATION OF THE COLLECTIONS MADE IN THE NON-CITATIONAL FOLLOW-UPS MENTIONED BY THE APPLICANT BANK IN THE APPLICANT BANK, AND THE MINIMUM NEED TO DETERMINE THE AMOUNT OF RECEIVABLES THAT CAN BE REQUESTED FROM THE HEIRS – LIMITATION REGULATION
SUMMARY: The claimant bank’s receivables from the main debtor as of the date of death of the decedent of the defendants are determined by means of an expert expert on the bank records, taking into account that the testator is the guarantor, and the collections made by the plaintiff bank in the non-litigation proceedings mentioned in their petitions are deducted, and the amount of the receivable that can be claimed from the heirs is determined. While it should be determined, it was not considered correct to make a decision with an incomplete examination.
(4721 S. K. Art. 605)
Litigation: At the end of the trial of the action for the annulment of the objection between the parties, the case was examined upon appeal by the counsel of the defendants, within the period of the verdict given for the acceptance of the case due to the reasons written in the verdict, and the need was discussed and considered.
The attorney of the plaintiff stated that the testator of the defendant debtors … is the joint guarantor in the general loan agreements dated 14/04/2008, 16/04/2008 and 16/07/2008 between the non-litigation … and the client bank, and that the mortgage against the non-litigation company due to non-payment of the loans. It was stated that the defendants were followed up against the defendants through the filing of the remaining balance through the file numbered 2011/1176 of the Safranbolu Enforcement Directorate, but the proceedings were stopped upon the objection of the defendants. stating that it was unfounded, demanded and sued that the objections be annulled and a 40% execution denial compensation against the defendants.
The attorney of the defendants, although their clients did not reject the inheritance within the legal time limit, the inheritance was forfeited due to the fact that the estate is in debt, that the testator did not have the capacity to act when he signed the loan agreements as a guarantor, that the debt of the testator on the date of death, not on the date of account is calculated. He demanded the dismissal of the case, arguing that, pursuant to Article 630 of the MK, his clients would be liable for the debt at the same rate as their liquidation shares, as a result of the liquidation of the inheritance according to the bankruptcy provisions.
As a result of the trial made by the court, in the report obtained from the Forensic Medicine Institute in terms of the capacity to act as of the dates the deceased signed the loan agreements; On 14/04/2008, 16/04/2008 and 16/07/2008, when the loan agreements were signed, no medical findings or documents were found to detect any symptoms in the testator, and it was stated that the testator had the capacity to act on the date the loan agreements were signed. 2nd. In the report received, letters were written to various banks and institutions in order to determine whether the inheritance is forfeited and whether the estate is in debt, the receivables and debts on the date of death were determined and an expert report was obtained; It was stated that the total assets were 88,727.84 TL, the total liabilities were 135,871.14 TL as of the death date of the deceased, and that his estate was deep in debt, however, after the death of the deceased, the defendants filed an application to the Ankara Tax Office Directorate, and they submitted a declaration of inheritance and gift tax. The inheritance is forfeited following the emergence of the debt situation arising from the guarantor of the testator, that the defendants acted within the scope of the ownership of the estate immediately after the death of the testator. In the decision of the 2nd Civil Chamber of the Supreme Court of Appeals, numbered 2012/17092 E.-2013/9247 K.; “….although the estate is deeply in debt; 610/2 of the Turkish Civil Code. As explained in the article, the heir who interferes in the estate transactions, hides or owns the estates cannot refuse the inheritance.” This case is against the good faith principle stipulated in Article 2 of the TMK, and that the defendants have submitted inheritance and gift tax returns in this case, and that the estate is managed by the defendants until the filing of the lawsuit is processed. The case was accepted and the objection of the defendants to the file numbered 2011/1176 of the Safranbolu Enforcement Directorate was annulled on the grounds that it was accepted that the case law of the Law Offices was in this direction and that the heirs acting within the scope of the ownership of the estate could not go to the decision of forfeiting the inheritance following the emergence of the debt due to the estate later on. to the continuation of the proceedings, and to pay the plaintiff with the collection of 40% execution denial compensation from the defendants, which will be calculated over the actual amount of the receivable, since the receivable is liquid.
The decision was made and the judgment was appealed by the counsel of the defendants.
1- According to the articles in the file, the evidence on which the decision is based and the compelling reasons, and the lack of inaccuracy in the assessment of the evidence, the defendants’ attorney’s other appeals, which are outside the scope of the following subparagraph, had to be rejected.
2- The claimant bank’s receivables from the main debtor as of the date of death of the decedent of the defendants are determined by an expert expert on the bank records, taking into account that the testator is the guarantor, and the collections made by the plaintiff bank in the out-of-court proceedings mentioned in their petitions are deducted, and the amount of the receivable that can be claimed from the heirs is determined. While it should be determined, it was not considered correct to make a written decision with an incomplete examination.
Conclusion: It was unanimously decided on 14.06.2016 that the other appeal objections of the counsel of the defendants be rejected for the reasons explained in the paragraph (1) above, that the verdict be quashed for the benefit of the defendants for the reasons explained in the paragraph (2), and that the advance fee be returned upon request.
