Action for annulment of disposition regulated in Article 277 of the Execution and Bankruptcy Law; It is filed for the purpose of annulment of the dispositions made by the debtor in favor of third parties by the creditors. If the creditor wins the case, the goods are sold while in the property of the third party, and the creditor receives his receivable from the price of the goods.
The claimant can be any creditor or bankruptcy administration that does not receive its receivable from the debtor -While having final or temporary insolvency certificate- and initiates enforcement proceedings. The defendant is; The debtor, the person who has had legal action with the debtor or to whom payment has been made by the debtor, and their heirs. It should be noted here that the action for the annulment of the disposition does not violate the rights of third parties who are not malicious. A third party in good faith cannot be the defendant in this case. In the event that the property subject to the action for annulment of the disposition is in the third person in good faith, a cash compensation case should be filed with the previous person.
It is clearly stated in the decision of the 17th Law Department of the Court of Cassation, dated 2012/7744 E. 2013/5115 K. 09/04/2013, that all transferors and transferees involved in the disposition transactions will be the defendants. Accordingly “…Pursuant to article 282 of the EBL, these lawsuits are brought against the debtor and the persons who have legal action with the debtor or who are paid by the debtor, and their heirs. In addition to these, an action for annulment can be filed against third parties with bad intentions. Since there is a compulsory friendship between the debtor and the person in favor of the disposition, this issue must be taken into account by the court ex officio…”
The conditions sought for filing an action for Annulment Of Disposition are as follows;
1- There must be a finalized and real receivable as of the date of the lawsuit. If an action for annulment of the disposition has been filed with the precautionary foreclosure at the stage of execution proceedings without finalized verdict, it is possible to make the finalization of the verdict a suspenseful matter by making this case a suspenseful matter.
2-The said receivable must have arisen before the disposition whose cancellation is requested! If the basis of the debt subject to enforcement proceedings is check or promissory note, the date of birth of the debt is the date of issuance of the note. In practice, since checks are usually issued with a future date, if it is proven with written evidence that the date of birth of the debt is earlier than the date of issue of the check or bill, this date will be valid.
3-There must be a certificate of insolvency about the debtor. While the lack of pledge about the debtor, the final insolvency document is necessary for the lawsuit, the movable attachments kept in the nature of İİK.art.105 are also sufficient for filing the case as a temporary insolvency document. However, the statement “no other lienable property was found” must be included in this lien report!
Donations, gratuitous dispositions, dispositions made by the debtor in case of insolvency, dispositions made to harm the creditors may be subject to cancellation.
- For donations and gratuitous gains to be subject to cancellation, they must be made within 2 years backwards from the lien. Although it is mutual; The debtor’s wife-husband, descendant-superior, relatives up to the 3rd degree, gains made between the adopter and adoption, contracts in which the debtor accepts a very low offer according to the value of what he has given at the time of the contract, annuity and income for the debtor himself or for the benefit of a third party for life. The contracts for which the right of usufruct is provided and the contracts of care until death are considered as gratuitous disposition.
- Made within 1 year backwards from the lien; Pledges made without a prior commitment to secure an existing debt, payments made by money or other methods of payment, payments made for undue debt, annotations given to the land registry for the strengthening of personal rights are deemed invalid.
- The dispositions made by the debtor, whose assets are not sufficient to meet his debts, with the intention of smuggling goods from his creditors, are subject to annulment in cases where the financial situation of the debtor and the intention to cause damage are known or need to be known by the other party of the transaction. For this reason, in order to annul the dispositions, the debtor must be followed up within 5 years from the date of dispositions and a lawsuit for the cancellation of the dispositions must be filed within 5 years.
This lawsuit must be filed in the Civil Courts of First Instance, subject to the general jurisdiction rules, within a period of 5 years foreclosure from the date of the disposition. Depending on the judge’s discretion, whether the plaintiff will deposit collateral or not, a precautionary attachment decision can be made upon the request of the creditor.
In the purchase-sale contracts made in practice, it is frequently encountered that the price is shown low and the real estate or commercial enterprise is transferred instead of payment. In order not to be harmed or victimized by such situations, it is important to consult your lawyer and take the necessary legal actions. You can always contact us for this and all similar legal transactions
