HOW TO REMOVE MORTGAGE?

Mortgage removal is the process of deleting the mortgage note on a mortgaged real estate from the land registry. Mortgage removal is also called mortgage release or cancellation of mortgage in the legal literature. Situations that terminate the mortgage are as follows:

• Full payment of the debt subject to the mortgage and abandonment of the mortgage by the mortgagee
• Invalidity of the receivable: For example, if the contract giving rise to the receivable was made illegally or fraudulently, or if the creditor and the debtor are the same person.
• Expiration of the receivable: For example, when the receivable becomes statute-barred.
• Invalidity of the mortgage contract: For example, if the mortgage contract was not made in writing or the parties were not competent.
• The owner of the real estate does not have or has limited power of disposition: For example, the owner of the real estate is a minor or is under guardianship.
• Filing a mortgage removal lawsuit and the court deciding to cancel the mortgage

Mortgage removal is generally done in two ways;

• Full payment of the debt subject to the mortgage and cancellation of the mortgage by the mortgagee: In this case, after the debtor pays the debt in full, the creditor requests the mortgage release letter from the person or institution to be sent to the land registry. Mortgage release letter is an official document stating that the mortgagee has paid the debt in full and consented to the release of the mortgage. The debtor requests the removal of the mortgage by applying to the land registry office. The land registry office examines the documents and decides to remove the mortgage and deletes the mortgage annotation on the property.
• If the mortgage is invalid or expired and a lawsuit is filed for the cancellation of the mortgage: In this case, although the debtor has paid his debt, if the creditor person or institution has not abandoned the mortgage or has not issued a mortgage release letter, the debtor applies to the court and requests the cancellation of the mortgage. In the lawsuit, the debtor is obliged to prove that he has paid the debt in full or that the mortgage is invalid. If the court evaluates the evidence and decides to remove the mortgage, this decision is sent to the land registry office and the mortgage annotation on the real estate is deleted.

A mortgage removal case is a lawsuit filed to delete the mortgage right on a mortgaged real estate from the land registry. This case is concluded if the mortgagee proves that he has paid the debt in full or that the mortgage is invalid.  If the mortgage right registered in the land registry is invalid, the owner of the immovable property may request the correction of this situation from the pledged creditor whose name is registered illegally. If the pledged creditor does not respond to this request of the immovable owner, the owner whose real right has been damaged due to improper registration can apply to the court. The conditions of the mortgage removal case are as follows;

• The plaintiff must be the owner of the mortgaged property or the person who purchased the mortgaged property. If the plaintiff is a person other than the mortgagee, he or she should not be personally liable for the debt.
• The plaintiff must document that the secured claim is invalid or has expired. For example, a receipt for full payment of the debt or a mortgage cancellation certificate issued by the creditor.
• The plaintiff must prove that the mortgage agreement is invalid or that the property owner has no or restricted disposition authority. For example, evidence that the mortgage contract was made illegally or fraudulently or that the real estate owner is a minor.

How is Halkbank, Vakıfbank and Ziraat Bank Mortgage Removal Done?

An application is made to the bank branch from which the loan was taken or a nearby branch of the same bank to request mortgage removal. The bank branch makes the necessary checks and scans the documents through the online system. Some banks charge mortgage removal fees etc. in such cases. requests payment under names. Such requests are against the law. If you still want to pay, the bank can send you information that will allow you to pay with your Iban number or TR ID information. Many banks send the information required to pay the mortgage fee by message. The memo or receipt showing that the mortgage removal fee has been paid is delivered to the bank branch where the loan is located, or it can be seen through the system that it has been paid. Afterwards, the mortgage release letter is sent electronically by the bank to the land registry office.

Do I Have to Pay a Mortgage Removal Fee?

If your bank asks you to pay a mortgage release letter fee, you can refuse. If your bank insists that you pay this fee, you can file a lawsuit to cancel the mortgage without paying this fee. Because banks are required to automatically remove the mortgage when the loan debt is terminated. There is no legal basis for them to demand payment from the consumer for the transaction that should be carried out by them. If the court orders the removal of the mortgage, the mortgage will be removed without paying a mortgage release fee to the bank.

Which Court is in Charge of Mortgage Removal Case?

As a rule, the mortgage removal case is filed in the civil court of first instance where the real estate is located. However, in some cases, the competent court may vary depending on the subject of the legal dispute. For example, family courts may be competent in case of removal of a mortgage on the family residence, while the consumer court is authorized if the dispute between the parties is based on a consumer transaction. If there is a case of a commercial nature, the competent court will be the commercial court of first instance. If the case is filed in the wrong court, the process can become prolonged and complicated. We recommend that you seek help from a real estate lawyer to prevent loss of rights.

Is the Mortgage Removal Case Subject to Mediation?

The mortgage removal case is a declaratory action and does not include a claim for receivables or compensation. Therefore, there is no mandatory mediation requirement in the mortgage removal case.

Who Pays the Fee in the Mortgage Removal Case?

In a mortgage removal case, litigation costs are borne by the person who initially filed the case upon filing the case. However, if a decision is made in his favor as a result of the case, these trial costs are borne by the defendant. If the case is filed by the consumer, no fee will be paid as consumers are exempt from the fee.

Is There a Statute of Limitations for Lifting a Mortgage?

The mortgage removal (mortgage release) lawsuit is not subject to any statute of limitations. For this reason, no matter how much time has passed, a person who wants to remove the incorrectly registered mortgage on the real estate can file this lawsuit.

What Happens If I Cannot Pay My Home Mortgage Loan?

If the debt is not paid in mortgage loans, banks can seize any movable or immovable property that is registered in the customers' names and has a value that can cover the loan amount. Banks do not allow the mortgage on the house to be removed until the loan payments are completed, and in case the payments are delayed, they can sell the real estate by pursuing enforcement proceedings by converting the mortgage into cash.

Web How to Remove Title Deed Mortgage?

It is not possible to perform mortgage removal transactions directly via web title deed. However, you can check whether the mortgage on a house purchased using a loan has been removed through the e-Government system after the application.

You can follow the steps below to follow the mortgage removal process:

• T.R. Log in to e-Government with your credentials.
• Go to the relevant page by typing “Land Registry Information Inquiry” in the search box.
• On the page you will find the list of real estate registered in your name.
• Click on the "Details" button for the property for which the mortgage removal application is made.
• On the page that opens, you will see the information of the real estate and under it, "Click for the (annotation, declaration, lien, easement, etc.) on your real estate." There will be an option.
• On the last page, "There is no annotation information for your real estate." If it is written, it means that the mortgage on the house has been removed.

Mortgage Removal Case Supreme Court Decisions

"The plaintiff's attorney claimed that a loan agreement was signed between his client and the defendant, that a mortgage was established on the plaintiff's immovable property as collateral due to the loan used, that the loan debt was paid off early, and that although all expenses were covered by the plaintiff, the defendant informed that the mortgage placed on the immovable property could not be removed because the mortgage release fee was not paid, and that the mortgage on the immovable property subject to the contract should be removed. ... The decision given by the court regarding the acceptance of the case. It was approved by our office, this time the plaintiff requested correction of the decision. , since it is understood that the plaintiff is right as of the date of the case, the 6th attorney fee should be awarded in favor of the plaintiff, but awarding the attorney fee in favor of the plaintiff without considering these issues is against the procedure and the law and requires reversal. (13th Civil Chamber of the Supreme Court of Appeals 2015/7541 E. 2015/8461 K. 17/03/2015 T.)

You can forward any questions you may have regarding the mortgage removal case to our office below.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy