The conditions accepted by the Supreme Court as prerequisites for filing a lawsuit for the annulment of a transaction are that the plaintiff has a genuine claim against the defendant debtor, that there is a valid enforcement proceeding, and that the transaction subject to annulment was made after the debt was incurred. It should be noted that the certificate of insolvency, as stipulated in Article 277 of the Enforcement and Bankruptcy Law, is also a prerequisite for filing a lawsuit for the annulment of a transaction. However, the examination in this article is limited to the specific prerequisites accepted by the Supreme Court.
Supreme Court 17th Civil Chamber, Date: 20.05.2009, Decision No: 2951/3395;
“The lawsuit concerns a request for annulment of a transaction filed pursuant to Articles 277 and subsequent articles of the Enforcement and Bankruptcy Law. For such lawsuits to be heard, it is necessary that the plaintiff has a genuine claim against the defendant debtor, that an enforcement proceeding against the debtor has become final, that the transaction in question was made after the debt arose, and that a certificate of insolvency exists for the debtor. The court must assess the existence of these conditions ex officio.”[1]
Supreme Court 17th Civil Chamber, Date: 03.11.2011, Decision No: 2228/10229;
“The lawsuit concerns a request for annulment of a transaction filed pursuant to Articles 277 and subsequent articles of the Enforcement and Bankruptcy Law. The prerequisites for an annulment lawsuit are the existence of a final enforcement proceeding against the debtor defendant, the submission of a certificate of insolvency by the plaintiff demonstrating the debtor’s insolvency, and the debt having arisen before the date of the transaction.”[2]
According to the aforementioned Supreme Court decisions, the first condition accepted by the Supreme Court in lawsuits for the annulment of transactions is that the enforcement proceedings initiated by the creditor against the debtor before the lawsuit must have become final, either before or after the lawsuit. It should be noted that the condition of the enforcement proceedings becoming final, as accepted by the Supreme Court, is essentially related to the certificate of insolvency requirement regulated in Article 277 of the Enforcement and Bankruptcy Law. More clearly, in order to file a lawsuit for the annulment of a transaction, the creditor must possess a definitive or provisional certificate of insolvency. For a definitive or provisional certificate of insolvency to be issued to the creditor, the creditor must have initiated enforcement proceedings through attachment, and these proceedings must have become final. Therefore, for the attachment records prepared during provisional or provisional attachment to serve as a substitute for a provisional certificate of insolvency, the provisional or provisional attachment must have been converted into a definitive attachment. Otherwise, since the records prepared will not be considered a provisional certificate of insolvency, the right to file a lawsuit for the annulment of the transaction will not exist. Indeed, the Supreme Court of Appeals is of the opinion that a lawsuit for the annulment of a transaction cannot be filed based on the minutes taken during the provisional attachment process stating that there is no attachable property. Similarly, the Supreme Court of Appeals has ruled to dismiss a lawsuit for the annulment of a transaction filed after the suspension of enforcement proceedings due to a lack of a prerequisite for filing a lawsuit.
Supreme Court 17th Civil Chamber. Date: April 21, 2008, Decision No: 2007/2050;
“In lawsuits for the annulment of transactions, the existence of a finalized and valid enforcement proceeding and the filing of the lawsuit based on this proceeding are prerequisites for filing a lawsuit. In the concrete case, the enforcement proceedings have ceased to be valid after the decision of the examining authority to suspend the enforcement proceedings.”[3]
On the other hand, although the court hearing the annulment lawsuit cannot, as a rule, examine whether the plaintiff’s claim exists, the Supreme Court of Appeals also requires that the plaintiff creditor actually be a creditor for the lawsuit to be heard.
Supreme Court 17th Civil Chamber, Date: 06.06.2013, Decision No: 3904/8424;
“The case concerns a request for annulment of a transaction filed pursuant to Articles 277 et seq. of the Turkish Commercial Code. One of the conditions for the admissibility of such cases is the existence of a claim, in other words, the person who made the transaction must be indebted. If there is no real debt, there can be no claim, and therefore the annulment case cannot be heard. In such cases, the defendants can claim and prove that the claim does not actually exist. In the concrete case, the defendants argued that the plaintiff’s claim was not real, that the promissory notes were forged, and that they had filed a criminal complaint with the prosecutor’s office regarding this matter. The case file indicates that a lawsuit has been filed against the plaintiff creditor and other individuals for crimes such as extortion, forming an organization, and usury, and that this case is pending. According to the forensic medical report, a copy of which is in the file, the promissory notes were issued by C. Ş., who is not a party to this lawsuit. In this situation, the court should await the outcome of the ongoing case in the High Criminal Court against the plaintiff creditor and the other parties, determine whether the plaintiff’s claim is real, and then evaluate all the evidence collected and to be collected together, and make a decision according to the resulting conclusion.” “The decision to accept the case, as stated in the written document, was incorrect due to insufficient investigation and examination, when a decision should have been made.”[4]
Supreme Court 17th Civil Chamber, Date: 19.09.2011, Decision No: 1539/7809;
“For lawsuits for the annulment of a transaction to be heard, the debt must have arisen before the transaction sought to be annulled; this is a precondition of the lawsuit and must be investigated ex officio by the court. If the condition of the lawsuit is not met, a judgment cannot be rendered on the merits of the case.”[5]
According to the Supreme Court, another special condition necessary for the annulment of the transaction in question is that the transaction was made after the debt arose. In other words, for a lawsuit for the annulment of a transaction to be filed, the claim must have arisen before the transaction in question.
Supreme Court 15th Civil Chamber, Date: 12.09.2005, Decision No: 1960/4597;
“For a decision to annul a transaction, it is a condition that the debt arose before the date of the transaction. The rationale of the law states that the debtor’s existing financial situation at the time of a legal transaction is taken into consideration, and therefore, transactions made before the transaction cannot be annulled. Our Chamber also consistently accepts that transactions prior to the date the debt arose are not subject to annulment. In the concrete case, the plaintiff failed to prove that the debt relationship arose before the date the check was issued. Although the court determined this, instead of rejecting the case, the court’s decision to accept the case on the grounds that the transaction was made between husband and wife was incorrect and necessitates reversal.”[6]
Supreme Court of Appeals, 17th Civil Chamber, Date: 03.10.2013, Decision No: 12821/13236;
“Thus, the plaintiff’s claim arose from a loan agreement signed with a non-party bank in 2002, and it is possible to file a lawsuit for the annulment of the debtor’s transactions after that date. In this case, the court should have accepted that the debt arose before the date of the transaction, proceeded to the merits of the case, gathered the evidence of the parties, and then made a decision based on the resulting outcome. However, the court’s decision to dismiss the plaintiff’s case, as written, is incorrect.”[7]
[1] Supreme Court 17th Civil Chamber, Date: 20.05.2009, Decision No: 2951/3395.
[2][2] Supreme Court 17th Civil Chamber, Date: 03.11.2011, Decision No: 2228/10229.
[3] Supreme Court 17th Civil Chamber. Date: April 21, 2008, Decision No: 2007/2050.
[4] Supreme Court 17th Civil Chamber, Date: 06.06.2013, Decision No: 3904/8424.
[5] Supreme Court 17th Civil Chamber, Date: 19.09.2011, Decision No: 1539/7809.
[6] Supreme Court 15th Civil Chamber, Date: 12.09.2005, Decision No: 1960/4597.
[7] Supreme Court of Appeals, 17th Civil Chamber, Date: 03.10.2013, Decision No: 12821/13236.