Cancellation of disposition lawsuit; It is a type of lawsuit filed by the creditor, who cannot collect his receivable through execution proceedings, against the debtor and the 3rd person who took over the property in order to request the cancellation of the disposals regarding the movable and immovable properties made by the debtor in the last 5 years for the purpose of evading property.
Conditions of the Cancellation of Disposition Case
- There must be a debt based on a real and legal relationship between the creditor and the debtor. This condition is set in order to protect the third party who transfers the movable or immovable property.
- The debtor must have a temporary or permanent insolvency certificate. The existence of an insolvency certificate is not a condition for filing a lawsuit, but this deficiency must be completed during the appeal phase at the latest. The sequestration report showing that the debtor has no property that can be seized also replaces the certificate of insolvency.
- The enforcement proceedings initiated by the creditor against the debtor must be finalised.
- The starting date of the initiated enforcement proceedings must be before the date of the debtor’s disposition.
The period of limitation of rights in the cancellation of disposals
In the cancellation of disposals, there is not a statute of limitations, but a grace period. This period is 1 year for the cancellation of savings due to insolvency and 2 years for the cancellation of gratuitous savings. If the debtor did it for the purpose of causing damage, the limitation period is 5 years. The creditor must file a lawsuit against the debtor or the third party who took over the disposition before the statute of limitations expires.
Competent and Authorised Court in Cancellation of Disposition Case
In cancellation of saving cases, even if the receivable is based on a commercial relationship, the competent court is the Civil Court of First Instance. The competent court is the court of residence of the debtor or the third party.