Information about the Situation of Liens
11/9/2019
Information about the Situation of Liens

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HEADNOTE FOR THE SITUATION ABOUT LIENS

  • Missing and misleading information was presented to the court!
  • Survey report was prepared using erroneous and unlawful findings!
  • A debt with collateral was displayed as one without collateral!
  • The University's survey report was completely ignored!


WHAT WAS THE GROUNDS FOR THE LIENS?

1. The Bank did not submit the mortgage contract documents, which are the securities for its receivables, to the Court.

2. The Bank even concealed from the Court, the information that the claim was secured by the mortgage as indicated in the application petition.

 

GROUNDS OF THE COURT RULING FOR LIENS:

The 18th Commercial Court of First Instance of Istanbul accepted Halkbank's application for liens because it did not include any information about mortgages in their application petition for liens and based the reason for the ruling of liens, which was made on 11.10.2019, upon “that the mortgage was not pledged".

 

THE REASON FOR OUR OBJECTION

  1. Although a decision of liens may be taken only if “the claim is not pledged" according to the legislation, the Court was misled by the incomplete and misleading information submitted by the Halkbank.
  2. It was presented to the Court with survey that the total value of the 8 real estates in Dragos belonging to the University was found to be 1,761,902,250.00 TL, that the total value of other 7 parcels, except for 237 parcels having ongoing cases, was found to be 516,616,036.00 TL and that the claim of the bank was exceedingly secured in terms of both mortgage limits and the value of real estates on mortgage, and revoke of the decision of liens was demanded.
  3. Since we have objected to the written warning of Halkbank, the claim of the Bank has not become  definite yet. 

 

THE EXPERTISE REPORT OF HALKBANK BASED ON MISLEADING AND UNLAWFUL FINDINGS:

In response to our objection, Halkbank submitted a new survey report to the Court based on a misleading and illegal findings. In this report, it is stated that 8 real estates in Dragos, which are the on mortgages, do not have economic value and cannot be sold to 3rd parties, and the value of 3 real estates in Tuzla was found to be 42,150,000.00 TL. Thus, Halkbank argued that the collateral did not meet the loan receivables and therefore the decision of liens should be continued.

 

COURT RULING:

The 18th Commercial Court of First Instance of İstanbul accepted only the 3 real estates in Tuzla as pledge and decided “the partial acceptance of the objections made by İstanbul Şehir University and the partial revoke of the decision, made on 11.10.2019, based on the receivables of 412,652,827.66 TL in cash and 52,780.00 TL in non-cash, and the continuation of the liens on 370,502,827.66 TL in cash, 52,780.00 TL in non-cash". The court ignored the pledge in Dragos, taking notice of Halkbank's survey report based on misleading and illegal findings.

 

RESULT:

In order to create a legal justification for the decision of liens made unlawfully, the loan with collateral was shown as one without collateral, which resulted in the continuation of the ruling for liens. This ruling by the 18th Commercial Court of First Instance is against the principle of “referring to pledge as a primary option" referred to in Clause 45 of the Bankruptcy and Enforcement Law and the imperative provisions of the law regulated in Clause 257 of the same Law, and our University will immediately object to the decision and resort to appeal.

In addition, the court was requested to make a denunciation for those who prepared the survey report based on the misleading and illegal findings to the Office of Chief Public Prosecutor on the basis of the “Crime of Misconduct" referred to in Clause 257 of Turkish Penal Code No. 5237 and the “Crime of attempting to influence the fair trial" in Clause 288 of Turkish Penal Code.