A Pensioner’s Salary Account Cannot Be Blocked Due To A Debt For Which They Are The Guarantor.
T.C.
COURT OF CASSATION
11th CIVIL CHAMBER
CASE NO: 2016/9590
DECISION NO: 2513
DATE OF DECISION: 09.04.2018
>THE PENSIONER’S SALARY CANNOT BE BLOCKED DUE TO A DEBT FOR WHICH HE ACTED AS GUARANTOR.
In the case between the parties, the decision dated 13/04/2016 and numbered 2016/28-2016/335 issued by the Artvin Civil Court of First Instance was requested to be reviewed by the Supreme Court by the plaintiff’s attorney, and it was understood that the appeal petition was submitted within the time limit. After hearing the report prepared by Review Judge Gülden Pekcan Duman for the case file and reading and reviewing the petition, pleadings, trial minutes, and all documents in the file, the matter was discussed and considered:
The plaintiff’s attorney stated that his client’s salary was deposited at the defendant bank’s Artvin Branch, that his spouse, S. G., was the guarantor for a loan taken out from the defendant bank, and that upon the defendant bank’s failure to pay the loan debt, the Artvin Enforcement Directorate initiated enforcement proceedings against his spouse and client based on enforcement file no. 2014/… 6, initiating enforcement proceedings, that 1/4 of his salary was deducted for this case, and that the remaining 3/4 was blocked ex officio by the defendant bank, that it is unknown how much has been collected ex officio from his salary by the defendant bank to date, stating that this deduction made by the defendant bank is unjust and unlawful, and requesting that the defendant be ordered to pay the unjustly deducted amount of TL 1,000.00 from his salary and allowances, together with interest accruing from the date of the lawsuit, and that the block placed on his salary account be lifted, reserving his rights to any excess amount.
The defendant’s representative stated that there was no deduction made to the client bank from the enforcement file mentioned in the petition, that the file from which the deduction was made was the Artvin Enforcement Directorate’s file numbered 2009/…2, that deductions were made from this file until 2012, and that no deductions were made after that date upon the termination of the debt, that the plaintiff did not correctly report the persons or institutions to whom he was indebted to the court, that according to the general cash and non-cash credit agreement signed with the defendant bank, for which the plaintiff was the guarantor, the defendant bank had the right of set-off and deduction, meaning that it could deduct the money deposited into the debtor’s account from the credit debt in return for its receivable, that the plaintiff also signed this agreement, that the agreement is commercial in nature, that the client made the deduction in question for the purpose of collecting the debt in accordance with Article 67 of the agreement in question, and that the lawsuit lacks legal basis, requesting that the lawsuit be dismissed.
Based on the entire case file, the court ruled that the credit agreement signed by the plaintiff as a joint and several guarantor was a commercial credit agreement, that Article 67 of the agreement regulated the defendant bank’s right of pledge and set-off, and that the defendant bank would not request the return of the deductions made within this scope, and therefore dismissed the case.
The plaintiff’s attorney appealed the decision.
The case concerned the plaintiff’s claim for the refund of deductions made by the defendant bank from the plaintiff’s salary account. and as a result of the trial conducted by the court, it was decided to dismiss the case on the grounds that the loan agreement signed by the plaintiff as a joint and several guarantor was a commercial loan and that Article 67 of the agreement regulated the defendant bank’s right of lien and set-off, and therefore there was no legal violation in the bank making this deduction.
However, the plaintiff’s pension cannot be blocked by the defendant bank under the authority granted by Article 67 of the agreement due to the plaintiff’s failure to pay the loan debt, as this is not possible under Article 93 of Law No. 5510 and Article 83 of the Enforcement and Bankruptcy Law. An agreement with the creditor regarding the seizure of property that cannot be seized prior to seizure is invalid. Even if there is no seizure on the plaintiff’s salary, the defendant bank’s blocking of the salary account has the effect of seizure. Therefore, the case should have been accepted, and the written judgment is incorrect and must be overturned.
CONCLUSION: For the reasons explained above, the plaintiff’s attorney’s appeal was accepted, and the ruling was REVERSED in favor of the plaintiff. The advance appeal fee paid will be refunded to the appellant upon request. The decision was made unanimously on 04/09/2018.