- Civil Chamber 2019/4293 E. , 2021/3301 K.
“Justice Text”
COURT: ISTANBUL REGIONAL COURT OF COURT 1st LAW DEPARTMENT
TYPE OF CASE: CANCELLATION OF DEED AND REGISTRATION-CREDIT
At the end of the title deed cancellation and registration, receivable lawsuit between the parties, the local court decided to reject the lawsuit. HMK 353/1-b-2. Pursuant to the article, the decision regarding the acceptance of the local court decision, the annulment of the local court decision, the rejection of the compensation request was filed by the plaintiff’s attorney in due time, and the defendant’s attorney willingly appealed within the legal period, and upon the notification made for Tuesday, 15.06. and his deputy Attorney … came, despite the notification of the invitation, the other appellant … his deputy Attorney et al. He did not come, the hearing was started in their absence. After the decision to accept the appeal petition, which was understood to have been given on time and was registered, the verbal statements of the attorney were heard, it was reported that the hearing was over, the matter was left to the decision. Subsequently, the report prepared by the Investigation Judge … was read and his opinion was taken. The file was examined and the need was discussed and considered:
-DECISION-
While the case was about the cancellation of title deed and registration based on the legal reason of fiduciary action, if not possible, the request for receivables, it was transformed into a request for the collection of the immovable value and a receivable with improvement.
The plaintiff has transferred the flat no. 15 of block B in the real estate no. 712, parcel no. 2 to the defendant, who has a high credibility in the eyes of the banks, for the purpose of obtaining a housing loan, provided that it is returned later, by selling all the installments of the housing loan provided by the defendant in accordance with the verbal agreement between them. Claiming that the defendant refrained from returning the immovable even though he paid off his debt, he asked the defendant to decide on the collection of the immovable together with the interest that will run from the date of payment until the date of collection, upon the determination of the payments made against the title deed and registration, if not possible, against the housing loan. from the date of transfer of the price; He requested the collection of the loan amount of 93,518.00 TL, which he claimed to have paid, together with the legal interest to be accrued as of the payment date.
The defendant purchased the real estate by paying 160,000,00 TL in person to the plaintiff, obtained a housing loan of 75,000,00 TL from the bank with the request of his non-litigation mutual friends and gave it to the plaintiff, that the plaintiff should make the loan payments according to the verbal agreement between them, but the plaintiff started to fail to pay the remaining debt. stated that he had to pay himself and that his request for receivable was time-barred and defended the rejection of the case.
The court decided to reject the case on the grounds that the allegations could not be proved, and upon the appeal of the plaintiff’s attorney against the decision, the regional court of appeals, the claim of the fiduciary transaction between the parties was proved with the bank receipts and the defendant’s partial acknowledgment, but the plaintiff’s appeal application was filed on the grounds that the plaintiff failed to fulfill his obligation arising from the faith contract. 1-b-2. It was decided to accept the decision of the local court, to cancel the local court decision, to reject the claim for compensation, to collect the 93,518.00 TL, which was fixed by the plaintiff for the loan debt, together with the legal interest to be accrued from the date of the lawsuit, and to be given to the plaintiff.
From the contents of the file and the evidence collected; The value of the real estate, which the plaintiff assigned to the defendant on 03.11.2008 for a price of 12,000,00 TL, through the out-of-court Erol Uslu, for whom the plaintiff has appointed the independent section (duplex house with roof play) no. 15 in block B in block 712, parcel no. It was discovered that it was 260,000.00 TL, the defendant obtained a loan of 75,000,00 TL from Garanti Bank in the housing finance contract dated 31.10.2008, out of action, and a mortgage annotation was established on 04.11.2008 on the immovable in favor of the bank, which was the subject of contention. it is understood that it has been lost.
As known; The belief contract is a debt-bound treatment made between the believer and the believer, which determines their rights and obligations, the reasons for the termination of the faithful treatment, and the conditions of returning (returning) the transferred right to the believer by the believer.
This contract is an independent contract covering the rights and debts of the parties and constitutes the legal reason for the transfer of receivables and property.
With such a contract and a related transaction, the parties generally apply to provide a thing or a right, which is included in the assets, to be a guarantee and to be returned, by creating a stronger legal situation than ordinary legal proceedings with the same purpose, to give the believer faithfully. Another explanation
With this transaction, the debtor gives his creditor a stronger and more advanced right than the pledge by passing the property of his property, instead of giving only a limited right in rem to his creditor.
Due to the mentioned features of the contract and the related assignment, the person who sells the immovable with the contract of belief is now only entitled to request that the immovable be assigned to him by returning the money he has borrowed; The person who bought the immovable with a contract of belief has only one debt left to not sell the immovable to someone else until the debt is paid, and to return it when the debt is paid.
In practice, the issue is associated with the decision to unify the jurisprudence dated 05.02.1947 and numbered 20/6, and a solution is reached by making this decision a basis. In the said decision; It has been discussed whether collusion and pseudonymous claims, which are possible and valid according to the old law, can be heard about immovable properties after the entry into force of the Civil Code. In the aforementioned decision; For various reasons and purposes, it is possible to show a third party instead of the real owner on a different name and instead of one of the contracts in a contract. Except for “malicious and unjust concealment”, a lawsuit to be filed according to the specified possibilities will in fact be in the nature of either a change of hand based on an existing right or the protection of a right; In this case, it is a matter accepted as the basis of succession in property in the relationship of representation and attorneyship, and even if the ownership of the property is thought to belong to the attorney in order to correct the succession, since it is contrary to the provisions of representation, it cannot be ruled to be protected and continued. The receivables of third parties arising from the works performed on behalf of and on behalf of the proxy automatically pass to the proxy as soon as the attorney fulfills all his debts to the attorney. On the other hand, the TCO, which covers collusion in the contract and name, states that neither the official deed nor the form issue can be the subject of discussion, since the issue cannot exceed the quality of a remuneration and property lawsuit in the case of both movable and immovable properties. It has been decided that considering the law within the scope of Article 19 of the Law will be appropriate for the purpose of the law, and after mentioning it, it is possible to prove the cases under his pseudonym with audible and written evidence.
It is indisputable that the decisions to combine the jurisprudence are limited to their subjects and binding with their results. It is also undoubted that the 1947 decision, which brought regulations for the pseudonymous name, covers the belief contracts regarding the assignment for the purpose of collateral. In practice, the aforementioned contracts are classified under the titles of collusion in general and pseudonymous titles in particular, both in terms of substance and functioning. As mentioned in the Decision to Unify the Precedent; Contracts of faith are on the one hand binding on the parties in terms of the obligation to transfer the property, on the other hand, they are the contracts that contain the disposition transactions in terms of constituting the reason for the transfer of the property. In this case, it should be accepted that it carries the property of transferring the immovable property if the conditions are met. As stated in the concluding part of the decision to unify the jurisprudence, the proof of the claims that are based on a fiduciary act and which are accepted to be heard is written evidence that does not depend on the form. This document, which is called a belief contract, must contain the signatures of the parties to the contract. Since an acceptance other than this would mean both expanding the scope of the decision to unify the jurisprudence and enabling the sale of immovables outside the title deed, it cannot be reconciled with these specific contracts.
There is no doubt that, pursuant to the Unification of Beliefs decision dated 05.02.1947 and numbered 20/6, the allegation based on the fiduciary transaction will have to be proved by non-formal written evidence. If the party bearing the burden of proof does not have a written document, but there are some documents such as letters, bank receipts, correspondence between the parties, it is fixed that these will be considered the beginning of written evidence and it will be possible to prove the claim with all kinds of evidence. If there is no such fact that can be considered as the beginning of written evidence, it is undoubtedly the right of the claimant to submit an oath to the other party as the last evidence to apply.
As for the concrete case, it is also accepted by the court that some loan fees were paid by the plaintiff.
As such, it is concluded that these payments are in the nature of the beginning of evidence, and the fact that the other evidences presented by the parties in terms of proof of the claim of fiduciary transaction are collected and the plaintiff’s renunciation of the title deed cancellation and registration does not mean that he has given up on the price of the immovable.