Law office
Base Number: 2015/8955
Decision Number: 2015/20045
“Justice Text”
COURT: Enforcement Civil Court
Upon the request of the debtors for the examination of the court decision, whose date and number is written above, within the period of appeal, the file regarding this matter was sent to the office from the place of the case.
1- In the examination of the appeals of the debtors … and ….;
The initial decision was appealed after the deadline. For this reason, the final decision regarding the rejection of the appeal request is found to be in accordance with the law in accordance with Articles 365 of the İİK. and 432 of the HUMK.
2- In the examination of the petition of appeal in terms of the debtor …;
It has been seen that the debtor was notified about the case on the hearing date, but he did not attend the hearing, and the case was concluded by continuing in absentia in terms of this debtor. It is understood that the court decision was notified to this debtor on 08.04.2014 and the appeal petition was submitted by this debtor on 16.04.2014.
In this case, EIC. Since the court decision was appealed before the expiry of the 10-day legal period specified in Article 363, it is within the appeal period. After the court’s decision to remove it unanimously, as the additional decision rendered by the court on the basis of 2013/460, decision numbered 2014/60 and dated 11.09.2014, was not valid, the appeal petition of … was examined.
The debtors against the proceeding without judgment through the general attachment initiated by the creditor; Upon the objections of the creditor to the debt, regarding the authority and the debt that they were guarantors in the loan agreement dated 01.07.2004, but that this debt was paid, and that they did not have any surety in the loan agreement dated 09.10.2007, which is the basis for the follow-up, the creditor applied to the enforcement court with the request of removing the objection, after the court complied with the annulment of the objection to the authorization. It is understood that in line with the report received from the expert, it was decided to accept the case and to continue the follow-up.
According to the first paragraph of Article 583 of the UK No. 6098; “The suretyship contract will not be valid unless it is made in writing and the maximum amount that the surety will be responsible for and the date of guarantee are specified. It is obligatory for the surety to indicate in his own handwriting the maximum amount for which he is responsible, the date of the suretyship and, in the case of being a joint surety, that he is under obligation in this capacity or with any expression that has this meaning.” In article 584 of the same law; “One of the spouses can be a guarantor only with the written consent of the other, unless there is a separation decision made by the court or the right to live legally apart; This consent must be given before the conclusion of the contract or at the latest at the time of its conclusion”. Also 27/1. It is also regulated in the article that contracts that are in violation of the mandatory provisions of the law will be absolutely null and void.
The debtor … became a guarantor of the principal debtor … before the creditor bank on 01.07.2004, and it was accepted by the parties that the debt was paid regarding this guarantee. There is no surety of this debtor in the loan agreement dated 09.10.2007, which is subject to follow-up by the creditor bank. For this reason, this debtor has no responsibility as there is no guarantor in the loan agreement made later. In the first surety contract, the reference to the debts to be made later is not valid since the surety amount is not specified.
In that case, the court should reject the request for the removal of the objection in terms of the debtor …, but it is inaccurate to make a written judgment.
CONCLUSION: With the acceptance of the debtor’s objections to the appeal, the court’s decision to be overturned due to the reasons stated in the paragraph (2) above, in accordance with the Articles 366 of the EBL and 428 of the HUMK. it was decided unanimously on 08/09/2015, with the way of correction open.
