Supreme Court Decision On Objection To Residency
Summary:
In a residential property objection: An expert should determine the value of a home that the debtor can afford based on their social status. If this value is less than the value of the home subject to the residential property objection, the seized home should be sold, the amount necessary for the debtor to purchase a home should be given to the debtor, and the remaining amount should be paid to the creditor.
In this case, it should also be decided that the sale should be carried out in such a way that the amount is not less than the amount the debtor can afford to purchase a home based on their social status.
T.C.
Court of Cassation
General Assembly of Civil Law
Case No: 2013/659
Decision No: 2014/252
Date: 5.3.2014
(…It is seen that the debtor, in the enforcement proceedings initiated against him, applied to the enforcement court requesting the lifting of the seizure pursuant to Article 82 of the Enforcement and Bankruptcy Law, stating that his home, which was appropriate for his circumstances, had been seized, and the court decided to lift the seizure.
Pursuant to Article 82/12 of the EBC, the debtor’s “suitable” home cannot be seized. Whether a dwelling is suitable for the debtor’s circumstances is determined based on the debtor’s social situation at the time of seizure and the needs of the debtor and their family. The term “family” here is broad and includes persons living under the same roof as the debtor and for whom the debtor is responsible. The enforcement court must pay the amount necessary for the debtor to secure a residence that is appropriate to their circumstances and necessary for them to live with the aforementioned persons, and the amount necessary for the residence with the characteristics specified above must be left to the debtor from the sale price, with the remainder paid to the creditor.
Places exceeding these criteria in terms of quality and characteristics, rooms and halls exceeding reasonable dimensions, and places other than dwellings containing the essential elements for residence are contrary to the purpose envisaged in the article. The debtor’s duties and status do not require him to reside in a more luxurious dwelling than that specified above.
In the specific case, it is seen that the court established its ruling based on the expert report prepared as a result of the on-site inspection conducted by the court, in which the value of the immovable property was determined, but without determining the value of a house that the debtor could purchase in more modest neighborhoods of the city, without luxury features, appropriate to his circumstances.
In this case, the court should obtain an additional report from the experts and, after determining the value of a home suitable for the debtor’s circumstances in a more modest location in the Tuzla district where the immovable property is located, If the determined amount is less than the value of the seized property, the seized property should be sold, and the amount necessary for the debtor to purchase a home suitable for their circumstances should be paid to them, with the remainder paid to the creditor. The sale should be conducted at a price not less than the amount required for the debtor to purchase a home suitable for their circumstances. Ruling in writing based on insufficient investigation and an inadequate report is inappropriate…)
The case was overturned on these grounds and returned to the court, whereupon the court upheld its previous decision after a retrial.
APPELLANT: Opposing party – creditor’s representative
DECISION OF THE GENERAL ASSEMBLY OF THE COURT OF APPEALS
After the General Assembly of the Court of Appeals reviewed the case and determined that the appeal against the decision to uphold the previous ruling was filed within the time limit, and after reading the documents in the file, the following was decided:
The request is based on Article 82/12 of the Enforcement and Bankruptcy Law (EBL) and concerns a complaint that the property is exempt from seizure due to its status as a residence.
The complainant-debtor, in the enforcement proceedings initiated against him by the creditor, claimed that his home, which was suitable for his circumstances, had been seized and requested that the seizure be lifted in accordance with Article 82 of the Enforcement and Bankruptcy Code.
The opposing party, the creditor’s representative, defended the dismissal of the case.
The court accepted the complaint and decided to lift the seizure on the grounds that the seized home belonged to the debtor, was suitable for his/her living conditions, and could not be seized. Upon appeal by the opposing party, the creditor’s representative, the ruling was overturned by the Special Chamber with the above-mentioned judgment.
Based on the file contents and the evidence gathered; in the enforcement file numbered 2006/15265 of the Kadıköy 7th Enforcement Directorate, creditor A.Ö. filed a claim against debtor M.B. for a total amount of 36,912.72 YTL, based on the judgment of the Kartal 1st Labor Court dated
dated 14.11.2006, case no. 2005/74, decision no. 2006/7009, and that an enforcement proceeding based on the judgment was initiated on 5.12.2006. The judgment on which the proceeding is based is as follows: The plaintiff is A.Ö., the defendant is M.B., and the case concerns the collection of labor claims arising from the plaintiff’s employment at the defendant’s workplace. The enforcement order was served on the debtor M. on December 7, 2006. The proceedings became final, and a lien was placed on the immovable property on July 31, 2007.
Article 82|12 of the Enforcement and Bankruptcy Law No. 2004 states: “The debtor’s home appropriate to his/her circumstances (However, if the value of the home is excessive, it shall be seized and sold, leaving the debtor with an amount sufficient to purchase a place appropriate to his/her circumstances).” Thus, it is regulated how the concept of a home suitable for the debtor’s circumstances is determined. In the reports obtained by the court, the value of the real estate in question was determined, but the value of a home suitable for the debtor’s circumstances was not determined.
Therefore, the court shall obtain an additional report from the expert witness to determine the value of a suitable home that the debtor can purchase in the Tuzla district where the debtor’s real estate is located. if this value is less than the value of the seized house that is the subject of the lawsuit, the seized house should be sold, the amount determined for the purchase of a house suitable for the debtor’s circumstances should be given to the debtor, the remaining amount should be paid to the creditor, and the sale of the seized house should be carried out in such a way that the amount is not less than the amount necessary for the debtor to purchase a house suitable for his circumstances.
For the reasons explained, the court must comply with the reversal judgment, and the previous decision to resist is contrary to procedure and law, and the decision to resist must be reversed.
CONCLUSION
The appeal objections of the opposing party-creditor’s representative are accepted, and the decision to uphold the ruling is overturned for the reasons stated in the reversal judgment, taking into account the reference in the transitional Article 3 of the Civil Procedure Code No. 6100, and in accordance with Article 429 of the Code of Civil Procedure, it is REVERSED on procedural grounds. Upon request, the appeal deposit shall be returned to the depositor. Pursuant to Article 366 of the Enforcement and Bankruptcy Law No. 2004, the decision is subject to review within 10 days of notification. The decision was made unanimously on March 5, 2014.