T. C.
Supreme Court
General Assembly of Law
Merits No: 2013/1114
Decision No: 2013/1041
Date: 10.7.2013
At the end of the trial which was brought against the parties due to the ından cancellation of the objection and negative determination fi; Istanbul 1. Consumer Court in the main case, the defendant G. E. about the rejection of the case, the other defendants M. M. Ö. and R. M. to the partial acceptance of the case; the decision of the merger of the case given on 11.09.2007 and 2004/3466 E., 2007/448 K. decision of the plaintiff and the defendant M. M. Ö. and R. M., upon the request of the deputy of the 13th Chamber of the Supreme Court of Appeals on 24.02.2009 and numbered 2009 / 376-2234;
The plaintiff claimed that the defendant G. E. gave the mortgage in 2000 and that the other defendants signed the contract as guarantor but the debt was not paid.
Defendants stated that the limit mortgage was placed on the immovable for the loan and the plaintiff bank initiated the follow-up by converting the mortgage to the money, and that the two debts could not be executed together due to the same debt. and R. M in the merger cases in the contract in relation to the interest rate is left blank and the contract is undated, although the contract is made over foreign currency payments in TL. they were given a mortgage on the basis of the amount of the loan received, and they decided to determine that they were not indebted due to the follow-up which was claimed to be invalid.
The court, even if the mortgage is provided in mortgages on the provision of mortgages on the condition that the repetition can not be repeated, the contract does not invalidate the contract does not invalidate the contract, the contractual interest rate is shown in the repayment scheme, the claimant can not want default interest to be cited and the principal debtor on the basis of expert report Since there is no valid objection for Gülsüm and the plaintiff does not have any legal benefit in filing a lawsuit with respect to this defendant, 11.4% of the total amount from the date of the follow-up to 69.360.Euro, which is the principal receivable amount to 78.678.02 Euro, is not charged to the case for the other defendant vouchers. interest and interest rate 5% BSMV implementation, 49.057.96.YTL compensation for the collection of compensation, in the case of the claimants 15.555.86.YTL owing to the decision was not determined; provision, plaintiffs and defendants M. M. Ö. and R. M. (the applicants).
1-The articles in the file, the evidence on which the decision is based on the necessary reasons for the law, and in particular the absence of a discretion in the discretion of the evidence, the plaintiff, the plaintiff of the defendant in the case, the appeal of the appeal of the appeal of the other appeal is required.
2-In the court decision, even if the receivable is provided in mortgages, even if the repetition is not repeated in the collection of vouchers can also be followed in the written form with the justification given the provision of Article 45 of the Bank of the Bank of the Bank in the execution of the bankrupt Even if the creditor alone can make a follow-up through the conversion of the hostage. However, if the amount is not sufficient to pay the debtor, the creditor can follow up the remaining receivable through bankruptcy or foreclosure. Because of the credit given by the plaintiff, it is not a matter of dispute that both the mortgage is converted into money and it is followed up by foreclosure. As such, it is unlawful and illegitimate that the provisions of the aforementioned law can be examined and examined in written form without any examination in accordance with this article.
For the reasons stated in the first subparagraph of the plaintiff, all plaintiffs of the plaintiff’s case were rejected by the court.
APPEAL: Defendant-joined case plaintiffs M .. M .. Ö .. and
R .. M .. ‘s Attorney
THE DECISION OF THE GENERAL ASSEMBLY OF LAW
It was discussed by the General Assembly of Law that it was understood that an appeal was made in the period of resistance and the papers in the file were read and then they were discussed as necessary:
The original case, the annulment of the appeal; the merged case is related to the requests for negative identification.
The plaintiff claimed that the defendant G. E. gave the mortgage in 2000 and that the other defendants signed the contract as guarantor but the debt was not paid.
Defendants, the loan against the loan is placed on the mortgage on the limit of the mortgage, the claimant has started the bank by following the conversion of the mortgage, arguing that the same debt can not be carried out together with the two follow-up, the defendant wishes the rejection of the case, defendants M. M. Ö. and R. M. In the case of merger cases, the contractual portion of the contract is left vacant and the contract is undated. they were given a mortgage on the basis of the amount of the loan received, and they decided to determine that they were not indebted due to the follow-up which was claimed to be invalid.
The court, even if the mortgage is provided in mortgages on the condition that the repetition of mortgages can be found in the adiyen follow-up, the contract does not show the interest rates, the contract does not invalidate, the contractual interest rate is shown in the repayment plan, the claimant can not want to default interest and the expert report is based on the basis of the the refusal of the case for Gülsüm, the debtor, and his / her legal objection to open the case; other defendant vouchers, the repetition of the repayment provided that the amount of 78.678.02 Euro on the cancellation of the objection to the principal amount of the cancellation of 69.360.Euro since the follow-up of 11.4% per annum interest and interest rate 5% BSMV application, 49.057.96.YTL collection of compensation for compensation, in the case of the merger of the claimants 15.555.86.YTL decision to determine whether they are owed; The text of the Special Circle has been corrupted by the process taken above in the title section; the court decided to resist the previous reasons. The applicants Meryem Meltem Özdemir and Rezzan Mavitan, the plaintiffs of the defendant-convened case, appealed.
Dispute disputes against the General Assembly of the Law; defendants in the case of the defendants M. M. Ö. and R. M., in agreement with the other defendant G. E. that the housing loan agreement used by the other defendant is jointly signed as a joint guarantor.
In order to better understand the legal relationship between the parties within the scope of the material phenomenon described above, the disclosure of the matter was considered useful.
The bu Housing Loan Agreement red was signed between the plaintiff of the main bank and the defendant GE and the asıl Housing Loan Agreement asıl and the 160.000.DM loan was used by the defendant GE, the defendant signed this loan agreement as the principal debtor and as the collateral of the loan, the defendant belonging to the district of Besiktas, Dikilitas, 1288 on the island, 8 parcels on the facade of the building with an independent building No. 2 independent mortgage bank in favor of the mortgage establishment, the other defendants G. Erlat and MM Ö. signed with the adjective, the defendant is the principal debtor GE on 27.03.2011, the defendant is transferred to MM Ö. as a mortgage liable to the defendant, on June 10, 2003, the claimant has a loan agreement on 10.01.2003. follow-up, defendant vouchers MM Ö. and R. M. filed a lawsuit for the annulment of the objection against the objection. also based on the loan agreement and mortgage deed of the plaintiff bank’s Istanbul 14nd Directorate Directorate, 2003/179 E. and 2003/1300 E. rate, defendants G. E. and Meryem M. Ö. the mortgage is followed by the conversion of the mortgage, followed by the debts of the borrower, and then the bankruptcy of the bank on the date of 30.04.2004 on the date of 10.04.2004 with the file No. 2004/255 E. the same indebted mortgage about the defendants in the same number with the file No. 2004/255 E. The proceedings of the main proceedings were filed by RM with the defendants of MM Ö’s Istanbul 1st Public Prosecutor’s Court 2004/236 E. and the plaintiff of the original case due to the loan agreement and follow-up about the bank There is no dispute about the fact that they have filed a lawsuit for the determination of their absence and the merging of these two cases.
Indeed, the same principle was adopted by the General Assembly on 14.10.1972 days and 1972/215 E.-841 K .; 18.04.2001 and 2001 / 12-354 E.- 367 K; It was adopted in its decisions dated 18.11.2009 and numbered 2009 / 19-426 E.- 543 K.
In the light of the explanations given above; the defendant G.E, 03.07.2000 dated and 2904 daily mortgages with the official bond of real estate mortgage for the responsibility of the principal debtor, then the mortgaged real estate of the guarantor of the main case of the defendant MM Ö. On the other hand, the bank is not a matter of dispute regarding the original debtor and several collaterals on the basis of both the loan agreement and the mortgage bond.
As is explained in detail above, there is no irregularity in the fact that the plaintiff bank has chosen both follow-up paths for the defendants. In this case, it cannot be said that the article 45 of the IIC should also be applied to the guarantors.
As such, the court’s resistance to that direction is right.
However, since the examination of the Departments of Instuties has not been carried out in terms of the merits of the work, the file should be sent to the Departments of Instuties for review.
RESULT: Due to the reasons explained above, due to the fact that the resistance was appropriate, the defendant-counter-plaintiffs M. M. Ö. and Article 13 of the Law No. 6217 and Article 61 of the Civil Procedure Law No. 6100, which is applied to the Law on Civil Procedure Law, in order to examine the appeals of appeal against the merits of the work. in accordance with the article 15 days within 15 days of the decision to be clear, 10.07.2013 was decided unanimously.