Court Of Cassation Decision On Annulment Of Objection.
T.C. JUDICIARY
8th Civil Chamber
Basis: 2013/223
Decision: 2013/9173
Date of Decision: 13.06.2013
ANNULMENT OF OBJECTION – PROCEEDINGS INITIATED DUE TO THE RECEIVABLE ARISING FROM THE LIQUIDATION OF THE PROPERTY REGIME – WITHDRAWAL OF ALL THE MONEY IN THE BANK ACCOUNT BY ONE OF THE JOINT ACCOUNT HOLDERS ALONE – ACCEPTANCE OF THE LAWSUIT IN HALF – JUDGMENT REVERSED
SUMMARY: On 9.6.2003, when the divorce case was filed and the property regime was terminated, all of the money was available in the account, and it is not in accordance with the ordinary flow of life and it is an unacceptable fact that the … Euro withdrawn approximately three months before 3.7.2003, when the divorce decision became final and the marriage ended, was spent on the needs of the house in such a short period of time. According to these explanations, it was not correct to accept the lawsuit (request) in half and to decide to cancel the objection and to continue the proceeding, to decide 20% (twenty percent) execution denial compensation since the receivable is liquid (examined-defined), but it was not correct to decide to dismiss it completely by making a mistake.
(Article 67 of Law No. 2004) (Article 23, 33 of Law No. 6100) (Article 25 of Law No. 1086) (Article 688 of Law No. 4721) (13. HD. 24.03.2008 T. 2007/14801 E. 2008/4078 K.)
Case: The review of the judgment dated 29.12.2010 and numbered 150/1066 rendered by Bakırköy 6th Family Court on 29.12.2010 regarding the dismissal of the cancellation of the objection (arising from the contribution receivable) lawsuit between C. B. and H. (B.) İ. was requested by the plaintiff’s attorney in due time; the file was examined and the necessary was considered:
Decision: The plaintiff C. B. claimed that 52.168,17 Euro in the joint account in Tekstilbank Kayseri Branch was withdrawn by the defendant spouse, that this money was created with the savings of his client within the marriage union, that enforcement proceedings were initiated against the defendant, and that the enforcement proceedings were stopped upon the objection of the defendant, who is his divorced wife, to the enforcement proceedings, and asked for the annulment of the objection, the continuation of the enforcement proceedings and the defendant to pay the defendant an execution denial compensation not less than 40%.
The counsel for the defendant H. B. İ. defended the dismissal of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that the bank account was joint between the plaintiff and the defendant and that both parties had the right to withdraw the money alone, and to pay 40% of the execution denial compensation from the plaintiff to the defendant. The judgment was appealed by the plaintiff’s attorney within the time limit.
It belongs to the judge to explain the facts, to make legal characterization to the parties and to determine the applicable article of law (Article 33 of the Code of Civil Procedure No. 6100). According to the way the claim was put forward; in the case, the plaintiff’s attorney requested the annulment of the objection to the enforcement proceeding initiated against the defendant (debtor) due to the receivable arising from the liquidation of the property regime, in accordance with Article 67 of the EBL.
The parties were married on 14.9.1990. They divorced on 3.7.2003 with the finalization of the judgment on the acceptance of the divorce case filed on 9.6.2003. The bank account at Tekstilbank Kayseri Branch amounting to 52.168,17 Euros was opened by the plaintiff and the defendant on 24.12.2001 as a <joint account> and the said account was closed by the defendant on 10.4.2003 by withdrawing money. According to the agreement made with the bank to open the account, a copy of which is included in the file, the account opened is joint and both parties are authorized to withdraw money together or separately, but the liability is jointly and severally. The share between the parties is not specified in the bank’s response letter. In such cases, the provision of paragraph 688/2 of the Turkish Commercial Code should be taken into consideration. According to paragraph 2 of the aforementioned article <unless otherwise determined, the shares shall be deemed equal>, such joint bank accounts where the share is not specified should be considered to be in half ratio. This is also the practice of the Court of Cassation and our Chamber. It should be accepted that the plaintiff and the defendant made the necessary sharing in the joint bank account, which they opened with their free will during the continuation of the marriage union, according to this ratio. The withdrawal of all the money in the bank account by one of the joint account holders alone does not mean that all of the money is donated to or belongs to that account holder.
Apart from that, the fact that all of the money was in the account on 9.6.2003 when the divorce case was filed and the property regime was terminated, and that 54.341 Euro, which was withdrawn approximately 3 months before 3.7.2003, when the divorce decision became final and the marriage ended, was spent on the needs of the house in such a short period of time does not comply with the ordinary flow of life and is an unacceptable fact. According to these explanations, it was not correct to decide for the cancellation of the objection and continuation of the proceeding by accepting the lawsuit (request) in half, since the receivable is liquid (examined-defined), 20% (twenty percent) execution denial compensation should be decided in accordance with paragraph 67/2 of the Code of Enforcement, but it was not correct to decide for its complete rejection on written grounds.
On the other hand, with the decision of the 13th HD of the Court of Cassation dated 24.3.2008 and numbered 2007/14801 E., 2008/4078 Decision; <… on the grounds that the claim is for the liquidation of the acquired property within the marriage union, the court in charge is not the Civil Court of First Instance, but the Family Court…> is binding on the Local Court in accordance with Article 23/2 of the Code of Civil Procedure (25/end of the Code of Civil Procedure) since the decision has become final.
Conclusion For all these reasons, by accepting the appellate objections of the plaintiff’s counsel, the judgment of the Local Court, which is contrary to the procedure and the law, shall be DISMISSED by majority vote in accordance with Article 428 of the Code of Civil Procedure No. 1086, which shall be applied by reference to the Provisional Article 3 of the Code of Civil Procedure No. 6100, and the parties shall be bound by Article 388/4 of the Code of Civil Procedure (Article 297 of the Code of Civil Procedure). /ç) and Article 440/I of the Code of Civil Procedure, it was decided by majority of votes on 13.06.2013 that the request for correction of the decision can be made within 15 days as of the notification of the Supreme Court of Appeal, and the advance fee of 18,40 TL shall be returned to the plaintiff if requested, on 13.06.2013.
VOTE AGAINST
Plaintiff C. B. summarized in his petition for the lawsuit; <… Bagcilar 1. Execution Directorate’s file registered in 2003/2536, he filed an execution proceeding against the defendant with Sample 48 documents, however, the proceeding was stopped due to the objection of the debtor (defendant), in fact, although the money was his own savings, he opened a joint account due to trust in his wife, however, By explaining that the defendant abused this trust and for this reason, by applying to the Civil Court of First Instance within the time limit, he requested and sued for the annulment of the objection, continuation of the proceeding, awarding the defendant an execution denial compensation not less than 40%, leaving the judicial expenses on the defendant.
In his petition dated 14.5.2004, the defendant objected to the jurisdiction, and also in his statements on the merits, in summary; <… the parties had agreed externally before the divorce, the passenger car, motorcycle, dowry items were left with the plaintiff, the money in the joint account was dedicated to him, he did not accept the lawsuit filed…>.
In the first decision dated 30.3.2007: the court decided to dismiss the case which could not be proved, upon the appeal of the plaintiff’s attorney: As it is written in the decision of the 13th Civil Chamber of the Court of Cassation dated 24.3.2008 and numbered 2007/14801 Main, 2008/4078 Decision <… since it is understood that the lawsuit filed by considering the withdrawal of the money and the defendant’s claim is for the liquidation of the acquired property within the marriage union, the Family Court is the court authorized to deal with the case and since the duty issue is taken into consideration ex officio, the decision of the local court without examining the other issues> Bakırköy 11th Civil Court of First Instance complied with the reversal order on 23.12.2008 and decided to dismiss the case. Upon the finalization of the decision, the file was sent to the Family Court. The Family Court continued the proceedings, and in the decision dated 29.12.2010 subject to appeal, in summary; it was decided to reject the cancellation of the objection, and to take 40% of the receivable from the plaintiff and give it to the defendant as execution denial compensation. The judgment was appealed by the plaintiff’s attorney for the reasons written in the petition.
From the collected evidence and the entire file scope; the creditor (plaintiff) attorney filed an execution proceeding against the defendant (debtor) on September 10, 2003 with the enforcement proceeding file registered in 2003/2536 Esasta of Bağcılar 1st Execution Directorate against the defendant (debtor) for a total of 54.341 Euro receivable with a 10% legal interest etc. with a sample 48 document. The debtor (defendant) objected to the debt with a petition to Erdemli Enforcement Directorate dated 22.9.2003. Thereupon, the creditor (plaintiff) attorney, as clearly stated in his petition within the time limit and as specific in the claim section, requested the annulment of the objection to the enforcement proceeding and the continuation of the enforcement proceeding, and the award of execution denial compensation not less than 40% against the defendant. The court conducted proceedings in accordance with the general provisions and as explained above, it was decided on 30.3.2007 to dismiss the cancellation of the objection which could not be proved.
As such, the 13th Civil Chamber of the Court of Cassation, with the above-mentioned reversal decision, characterized the case as a lawsuit for the liquidation of the property regime in accordance with Articles 202 et seq. of the Turkish Civil Code and explained that the issue of jurisdiction should be taken into consideration ex officio since it is related to public order. However, the local court complied with the reversal decision. According to the practices of the Court of Cassation, compliance with the reversal decision has created procedural vested rights for and against the parties. However, the case at hand is not a lawsuit for the liquidation of the property regime as it was initially filed correctly. It is a type of lawsuit for the cancellation of the objection due to the objection to the execution proceeding without execution and for the compensation for the denial of execution. In fact, while it is correct to conduct this case according to the general provisions and to decide as written in the first decision, and while it is possible to file any lawsuit requesting the liquidation of the property regime to the Family Court within 10 years from the date of filing the divorce case, although the aforementioned decision of the 13th Civil Chamber of the Court of Cassation is contrary to the procedure and law, it has created a procedural vested right by complying with it.
Apart from all these, pursuant to Articles 74 and 76 of the Code of Civil Procedure and Article 33 of the Code of Civil Procedure, the legal characterization belongs to the judge. Although the meaning of this general and legal rule is left to the courts due to the fact that the request in the petition is not clearly explained or understood, the request in the concrete case is a cancellation of the objection filed within the time limit due to the objection to the execution proceeding and according to the general provisions pursuant to Article 67 of the Code of Enforcement. For these reasons, there is no need to make any further qualification in accordance with Articles 74, 76 of the Code of Civil Procedure and Article 33 of the Code of Civil Procedure. Apart from all these, as it is written in the majority opinion, the parties were married on 14.9.1990, and in accordance with the decision of Sarıoğlan Civil Court of First Instance dated 19.6.2003 and numbered 2003/75-75, it was decided to accept the divorce case filed by the plaintiff Handan Bal in accordance with Article 166/1 of the Civil Code and to divorce the parties. The said decision was finalized on 3.7.2003 without recourse to legal remedies. According to the scope of the response from Tekstilbank, where the joint account is available in the file, it is obvious that a joint account was opened in the name of the parties, that one of the parties has the authority to close the entire account without notifying the other, and that the joint and several responsibility belongs to them. The dispute is whether the annulment of the objection filed in accordance with the general provisions as a result of the plaintiff’s execution proceeding without a judgment and the defendant’s objection in due time due to the withdrawal of all the money in the joint account with interest by the defendant and the closure of the account while the marriage union continues, can be seen as a kind of liquidation of the property regime, or whether the amount of this money should be given to the plaintiff, since it is undisputed that the money was withdrawn by the defendant when it is characterized as the liquidation of the property regime. Since the action is taken according to the scope of the reversal decree, the investigation of all the income of the parties, taking into account the date the account was opened, taking into account Articles 152 and 170 of the TMK, is within the framework of general research, and according to the plaintiff’s explicit statement in the lawsuit petition and other subsequent petitions, considering the statement that <he opened the account due to trust in his wife>, it should be accepted that especially 1/2 share was donated to his wife (secret donation). For the remaining 1/2 share, it is imperative that the investigations and examinations for the liquidation of the property regime be carried out in full. Since the case is carried out as the liquidation of the property regime in accordance with the judgment of reversal, in this case, there is no need to cancel the objection, to continue the proceeding and to award 20% execution denial compensation. Moreover, considering that the movable goods written within the scope of the external agreement dated 30.11.1990, which was made between the defendant’s father and the plaintiff at the beginning of the marriage, were left in the plaintiff according to the scope of the external agreement during the divorce and that the plaintiff did not have any objection to these demands at the trial stages, it should be accepted that these goods remained in the possession of the plaintiff with the deed dated 30.11.1990, where the external agreement existed, that is, they were in the possession of the plaintiff and left in the plaintiff in return for the money in the bank account subject to the lawsuit.
For all these reasons I have explained, it has not been possible for me to agree with the opinion of the majority of the Chamber, which is a final reversal. For the reasons I have stated and for the amount other than the secret donation, I am of the opinion that a research reversal should be made in accordance with Articles 202 et seq. of the Turkish Civil Code, taking into account Articles 152 and 170. 13.6.2013
According to the provision of Article 67/2 of the Bankruptcy and Enforcement Law No. 2004, which was in force on 30.1.2004, when the annulment of the objection subject to appeal was filed; <If the objection of the debtor in this case is decided to be unfair, the debtor; If it is deemed unfair and malicious in its proceedings, the creditor; Upon the request of the other party, upon the request of the other party, according to the situation of the two parties, the tolerance of the case and the judgment, it shall be sentenced to an appropriate compensation, not less than forty percent of the amount rejected or judged. > The compensation rate in the aforementioned article was changed to twenty percent with Article 11 of the Law No. 6352, which entered into force on 2.7.2012.
Each lawsuit (proceeding) is resolved according to the conditions at the time it was filed. One of the primary principles of the rule of law is that the person or persons who make a legal transaction should know what they will gain or lose at the end of this transaction according to the existing laws. In other words, ignorance of the law is no excuse. New situations cannot be created in favor of one party to the detriment of the other party through subsequent legal amendments. Except in cases requiring public interest, there is no room for coincidences and surprises in the rule of law. Those who apply for legal remedies should decide by investigating and examining the existing regulations.
In the concrete case, I am of the opinion that it is not correct for the majority of the court to decide that the repudiation indemnity, which should be applied as forty percent according to the legal regulation in force as of the date of filing of the annulment of the objection, should be determined as twenty percent in the reversal judgment. I fully agree with the reversal opinion of the majority except for the above mentioned issues. 13.06.2013 (¤¤)
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