Complaint Of Domicile, Family – Obligation To Provide Care, Mother Receiving Pension, Supreme Court Decision
Summary:
Pursuant to Article 82/12 of the Enforcement and Bankruptcy Code, the debtor’s “appropriate” home cannot be seized. Whether a dwelling is appropriate 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 refers to persons living under the same roof as the debtor and for whom the debtor is responsible. After the Enforcement Court has the necessary amount to provide the debtor with a residence appropriate to his circumstances, necessary for him to live with the aforementioned persons, determined by experts, if the value of the seized property exceeds this amount, a decision should be made to sell it, and the amount necessary for the residence with the characteristics specified above should be left to the debtor from the sale price, and the remainder should be paid to the creditor. Premises exceeding these criteria in terms of quality and characteristics, as well as premises that include rooms and halls exceeding reasonable dimensions and contain elements essential for residence, are contrary to the purpose envisaged in the article. The debtor’s position and status do not require him to reside in a more luxurious dwelling than that specified above.
T.C.
Court of Cassation
8th Civil Chamber
Case No: 2013/13232
Decision No: 2014/1002
Date: 23.1.2014
Upon the defendant’s request for an appeal review of the Court decision dated and numbered above within the specified time limit, the relevant file was sent from the local court to the Chamber. After hearing the report prepared by the Review Judge for the case file and reading and examining all the documents in the file, the matter was discussed and considered:
DECISION
In the enforcement proceedings initiated by the creditor, the debtor claimed that his home, which was suitable for his circumstances, had been seized and requested that the seizure be lifted. The Court accepted the complaint of non-seizability and decided to lift the seizure. The ruling was appealed by the creditor’s representative.
Pursuant to Article 82/12 of the Enforcement and Bankruptcy Law, the debtor’s “appropriate” home is exempt from seizure. 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 includes persons living under the same roof as the debtor and for whom the debtor is responsible. After the Enforcement Court has the necessary amount to provide the debtor with a residence appropriate to his circumstances, necessary for him to live with the aforementioned persons, determined by experts, if the value of the seized property exceeds this amount, a decision should be made to sell it, and the amount necessary for the residence with the characteristics specified above should be left to the debtor from the sale price, and the remainder should be paid to the creditor. Premises exceeding these criteria in terms of quality and characteristics, rooms and halls exceeding reasonable dimensions, and premises other than dwellings containing the essential elements for habitation are contrary to the purpose envisaged in the article. The debtor’s position and status do not require him to reside in a more luxurious dwelling than that specified above.
In the specific case, the value of the property and the debtor’s residence appropriate to their circumstances was requested to be determined by experts through the Ödemiş Enforcement Court, which was the subject of the claim of residence. The report forming the basis of the decision stated that the value of the property in question, which had 3 bedrooms and 1 living room, was 75,000.00 TL, and that the amount necessary for the debtor to secure a more modest home suitable for his circumstances, where he could live with his two children and mother, was 75,000.00 TL. It was reported that the home in question was a home suitable for the debtor’s circumstances. The court found this report sufficient and decided to accept the complaint and lift the seizure.
The social and economic status investigation conducted by the court through the police, which is included in the file, determined that the debtor is a Bağ-Kur pensioner with a monthly income of 620.00 TL and that his mother, with whom he lives, receives a pension of 650.00 TL from her late husband.
Semiha Çavdır, the debtor’s mother, who was heard as a witness in court, stated that the houses in the neighborhood where they live are worth around 40,000.00 TL. Considering these facts together, it was deemed inappropriate to rely on the expert report. This is because it was determined that the debtor’s mother, with whom he lives, receives a pension and is therefore not obligated to support him. According to the testimony of his mother, who was heard as a witness, the house in which the debtor lives, which is the subject of the complaint, is worth around 40,000.00 TL, and houses in the same neighborhood are also worth this amount.
Therefore, the task of the Court is to re-determine the value of both the seized property and a smaller, more modest dwelling in a different neighborhood that is appropriate for the debtor’s circumstances, without disregarding the fundamental principle of enforcement law, which is to ensure that the creditor recovers their debt. If this value is less than the value of the seized property, it is necessary to decide that the seized property should be sold, the necessary amount for the debtor to purchase a home suitable for their circumstances should be paid to them, and the sale should be made for an amount not less than that which would enable the debtor to purchase a home suitable for their circumstances.
CONCLUSION: The appeal objections of the creditor’s representative are accepted, and the judgment is REVERSED for the reasons stated, pursuant to Article 366 of the Enforcement and Bankruptcy Code (EBC) and Article 428 of the Code of Civil Procedure (CCP) No. 1086, as referred to in Provisional Article 3 of the CCP No. 6100. (HMK m.297/ç) and Article 366/3 of the İİK, a request for correction of the decision may be made within 10 days of the notification of the Court of Cassation Chamber’s decision. It was unanimously decided on 23.01.2014.