Supreme Court Decision On Filing A Seizure Request Within One Year
T.C.
COURT OF CASSATION
GENERAL ASSEMBLY OF LAW
E. 2017/12-1147
K. 2017/1304
T. 8.11.2017
• REQUEST FOR THE CANCELLATION OF A PUBLIC OFFICIAL’S DECISION THROUGH THE COMPLAINT PROCEDURE (If the Creditor
Has Filed a Request for Attachment Within One Year, the Failure to Attach the Debtor’s Property Within the Same One-Year Period
Does Not Result in the Loss of the Right to Request Attachment
and the Dismissal of the Case
– The Creditor’s Attorney Having Requested the Attachment of the Debtors’
Movable Property and the Debtor’s Salary Within the Legal One-Year Period
Does Not Extinguish the Creditor’s Right to Request Attachment/No Renewal Fee Is Required
and Attachment May Be Requested Directly)
• RIGHT TO REQUEST SEIZURE (The right to request seizure shall lapse one year after the date of service of the payment order.
If the creditor does not request seizure within one year or withdraws the seizure request and does not request seizure again within one year, the case file shall be removed from the docket.
or withdraws the request for seizure and does not reapply for seizure within this one-year period,
the case file will be removed from the docket.
The fact that the debtor’s property has not been seized within the one-year period
does not require the right to request seizure to lapse.
– Since the attachment was requested within the legal one-year period,
there is no need for a renewal fee, and attachment may be requested directly)
• FILING AN ATTACHMENT REQUEST WITHIN ONE YEAR (Within the same one-year
Period) Does Not Result in the Loss of the Right to Seize
and the Case Being Dismissed – The Creditor’s Attorney Requested the Seizure of the Debtors’
Personal Property and Wages Within the Legal One-Year Period
The Creditor’s Right to Request Seizure Does Not Lapse/Since Seizure Was Requested Within the Legal One-Year Period
There Is No Need for a Renewal Fee and Seizure Can Be Requested Directly)
• RENEWAL FEE (If the Creditor Has Requested Seizure Within the One-Year Period
Within the Same One-Year Period, the Failure to Attach the Debtor’s Property
Does Not Result in the Loss of the Right to Request Attachment and
The Removal of the File from Proceedings/The Request for Attachment of the Debtor’s Property
Does Not Constitute a Renewal Request –
If a Seizure Request Has Been Made Within the Legal One-Year Period, the Creditor’s
Right to Request Seizure Does Not Lapse/There Is No Need for a Renewal Order or
Renewal Fee, and Seizure May Be Requested Directly)
2004/m.78
SUMMARY: The right to request seizure expires one year after the date of service of the payment order.
If the creditor does not request seizure within the one-year period
or withdraws the seizure request and does not request seizure again within this one-year period,
the enforcement file is removed from the proceedings. In this case,
the enforcement file is only removed from the proceedings; the enforcement proceedings do not lapse. The creditor may request attachment in the same enforcement file by filing a renewal request.
If the creditor has filed a request for attachment within the one-year period,
the fact that the debtor’s property has not been attached within the same one-year period
does not result in the lapse of the right to request attachment
and, consequently, the removal of the enforcement file from the docket.
In this case, the debtor’s property may be attached upon request, In this case, requesting the seizure of the debtor’s property
does not constitute a renewal request.
The creditor’s representative has not lost the right to request seizure
by requesting the seizure of the debtor’s movable property and wages
within the legal one-year period. In this case, for the creditor to request seizure again,
there is no need to serve the debtor with a renewal order and, consequently, to collect the renewal fee;
the creditor may request seizure directly without making a renewal request.
CASE: Following the trial conducted due to the request for the “cancellation of the official’s decision through the complaint procedure”
between the parties, the Borçka Enforcement (Civil)
Court issued a decision on July 10, 2013, numbered 2013/2 E.,
2013/12 K., dismissing the complaint. Upon the complainant’s attorney requesting an appeal review of this decision,
the Supreme Court of Appeals 12th Civil Chamber issued a decision on December 5, 2013, numbered
2013/31165 E., 2013/38701 K. dated December 5, 2013,
stated that, “…The creditor’s right to request attachment expires one year after the date of service of the payment order
(Article 78/2.C.1 of the Enforcement and Bankruptcy Code). In such cases, since the enforcement file
will be removed from the proceedings (Article 78/4), the creditor must file a renewal request
to request attachment, and this request must be served on the debtor. On the other hand,
paragraph 5 of the same article provides that a fee shall be collected upon the filing of a renewal request
in enforcement proceedings not based on a judgment.
In the present case, the payment order numbered 7 was served on the first debtor
on September 18, 2009, on the second debtor on September 30, 2009, and on the third debtor on October 1, 2009
, and the creditor requested the seizure of the debtors’ movable property and
the debtor’s salary on March 10, 2010, and May 26, 2010,
i.e., within the statutory one-year period. Therefore, the creditor’s “right to request seizure”
has not lapsed. In this case, for the creditor to request seizure again,
there is no need to serve the debtor with a renewal order in accordance with Article 78/5 of the Enforcement and Bankruptcy Code
and, consequently, to collect a renewal fee. In other words,
the creditor may request seizure directly without making a renewal request.
Article 110/3 of the Enforcement and Bankruptcy Code stipulates that the creditor is responsible for expenses such as the imposition and maintenance of attachment.
Since the aforementioned provision does not relate to renewal fees or the period for requesting attachment, it does not apply in the present case.
Therefore, the court’s decision to dismiss the complaint instead of accepting it is incorrect…
The decision is reversed on the grounds stated above, and the case is remanded for retrial.
Therefore, the court’s decision to reject the complaint instead of accepting it
is incorrect…”
The case was overturned on this ground, and after the case was returned to the court for a new trial,
the court upheld its previous decision.
After reviewing the case, the General Assembly of the Court of Appeals determined that the appeal against the decision to uphold the previous ruling was filed within the prescribed time limit
and, after reviewing the documents in the file, reached the following conclusion:
DECISION: The request concerns the cancellation of an official act through a complaint.
The complainant’s attorney stated that on
September 11, 2009, an enforcement proceeding was initiated against the debtors at the Borçka Enforcement Office
on September 11, 2009, that the payment order was served on all debtors,
that no objection was filed within the time limit,
that the enforcement proceedings became final, that numerous enforcement proceedings were conducted against the debtors,
but that no attachment proceedings were conducted during the period specified in the relevant articles of the Enforcement and Bankruptcy Code No. 2004
, it was decided to lift the attachments,
and although an application was made on April 22, 2013, requesting the attachment procedure,
it was decided that the file must first be renewed,
and for the renewal, an application and advance fee must be paid,
and that the Borçka Enforcement Office’s action was unjust and contrary to public order.
. The complainant requested, through the complaint process, the annulment of the decision titled “Decision Approval Record” dated April 22, 2013, issued by the Borçka Enforcement Office in the case file numbered 2009/921,
and the renewal of the file without the payment of fees.
The Local Court of First Instance ruled that the Borçka Enforcement Office’s decision in the case file numbered 2009/921 was unlawful and contrary to public order.
The Local Court of First Instance ruled that the Borçka Enforcement Office’s decision in the case file numbered 2009/921 was unlawful and contrary to public order.
The Local Court found that in the Borçka Enforcement Office’s 2009/921 numbered enforcement file,
the creditor’s attorney had filed a seizure request on March 10, 2010,
and as a result, the vehicles with license plates 34 TK 498 and 34 ZP 7400
were seized on April 11, 2010. Subsequently, the creditor’s attorney requested the seizure of the debtor’s salary on May 26, 2010, but
there is no information or documentation in the file indicating that this seizure was carried out.
After this date, the creditor’s attorney did not make any further requests in the file.
According to the date of seizure of the vehicles, it was possible to request the sale of the vehicles until April 11, 2011.
According to the date of seizure, the sale of the vehicles could have been requested until April 11, 2011.
Since no seizure was requested by this date, it must be accepted that the seizure lapsed on this date.
Since more than one year has passed between the date the seizure lapsed (April 11, 2011) and the date the file was removed from proceedings (December 12, 2012),
there is no procedural irregularity in the removal of the file from proceedings.
, there is no procedural irregularity in the removal of the file from proceedings.
If the renewal of the file removed from proceedings is requested, a new fee will be collected in accordance with the provisions of Article 78/5 of the Enforcement and Bankruptcy Code
, and that the execution office’s decision to reject the request for renewal
due to non-payment of the renewal fee
is in accordance with the law, and the complaint was dismissed.
The decision was overturned by the Special Chamber
on the grounds explained in the heading section above, upon appeal by the complainant’s attorney.
The court issued a decision to uphold the previous grounds.
The decision to uphold was appealed by the complainant’s attorney.
The dispute brought before the General Assembly of the Court of Appeals through the appeal process centers on whether the case file can be dismissed for other reasons after the legal requirement under Articles 78/2
and 4 of the Enforcement and Bankruptcy Code (that a request for attachment be made within one
year of the service of the payment order) has been fulfilled.
The General Assembly of the Court of Appeals
decided that the case file could not be dismissed for other reasons after the legal requirement under Articles 78/2
As is known, the creditor’s right to request attachment is subject to a one-year time limit. The right to request attachment
expires one year after the date of service of the payment order
(Article 78/2(C)(1) of the Enforcement and Bankruptcy Code). If the creditor does not request attachment within the one-year period (Article 78/2 of the Enforcement and Bankruptcy Code)
or withdraws the attachment request made within the one-year period
and does not file another attachment request within the same one-year period,
the enforcement file is removed from the docket. (Article 78/4) In this case, the enforcement file
is merely removed from the docket; the enforcement proceeding does not lapse. That is, the enforcement proceeding remains pending.
In this case, the creditor may request attachment in the same enforcement file by filing a renewal request. (Article 78/5)
However, if the creditor has filed a request for seizure within one year,
the fact that the debtor’s property has not been seized within the same one-year period
(or even later) does not result in the loss of the right to request seizure and, consequently,
the removal of the enforcement file from the proceedings. In such a case, the enforcement proceedings remain pending,
and the creditor’s request for attachment made within the one-year period
(even after one year has passed) does not constitute a renewal request
under Article 78/5 of the Enforcement and Bankruptcy Law.
Therefore, there is no need for the creditor to pay the fee again Therefore, in this case, there is no need for the creditor to pay fees again or for the request to be served on the debtor. (Kuru B.: Enforcement and Bankruptcy Law Handbook, 2013, 2nd Edition, pp. 414, 415).
In the present case, the first payment order was served on the debtor on September 18, 2009, the second on September 30, 2009, and the third on October 1, 2009.
, to the second on September 30, 2009, and to the third on October 1, 2009.
The creditor’s attorney requested the seizure of the debtors’ movable property and the debtor’s salary within the legal one-year period,
thereby ensuring that the creditor’s right to request seizure has not lapsed.
In this case, the creditor In this case, for the creditor to
request seizure again, there is no need to serve the debtor with a renewal order
and thus collect a renewal fee, in accordance with Article 78/5 of the Enforcement and Bankruptcy Code.
In other words, the creditor may request seizure directly without
submitting a renewal request.
Under these circumstances, while the local court should have complied with the reversal decision of the Special Chamber, which was also adopted by the General Assembly of the Court of Appeals,
it erroneously upheld the previous decision, which is contrary to procedure and law.
Therefore, the decision to uphold the previous ruling should be reversed.
REASONING:
CONCLUSION: The appellant’s appeal objections are accepted, and the decision to uphold the ruling is
reversed for the reasons stated in the Special Chamber’s reversal decision.
If requested, the appeal deposit shall be refunded to the payer, and the decision is subject to revision.
The decision was made unanimously on November 8, 2017.