Republic of Turkey
COURT OF CASSATION
GENERAL ASSEMBLY OF CIVIL LAW
E. 2017/12-1147
K. 2017/1304
T. 8.11.2017
• REQUEST FOR CANCELLATION OF AN OFFICIAL PROCEDURE THROUGH COMPLAINT (If the Creditor Has Requested Seizure Within One Year, the Failure to Seize the Debtor’s Property Within the Same One-Year Period Does Not Require the Loss of the Right to Request Seizure and the Removal of the File from Proceedings – The Creditor’s Representative Requested the Attachment of the Debtors’ Movable Property and the Debtor’s Salary Within the Statutory One-Year Period, Therefore the Creditor’s Right to Request Attachment Has Not Lapsed/There is No Need for a Renewal Fee and Attachment Can Be Requested Directly)
• RIGHT TO REQUEST SEIZURE (The right to request seizure shall lapse one year after the date of notification 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 this one year, the case file shall be removed from the docket – Failure to Attach the Debtor’s Assets Within One Year Does Not Require the Right to Request Attachment to Lapse/Since Attachment Was Requested Within the Legal One-Year Period, There Is No Need for a Renewal Fee and Attachment May Be Requested Directly)
• REQUEST FOR SEIZURE WITHIN ONE YEAR (The fact that the debtor’s property has not been seized within the same one-year period does not require the loss of the right to request seizure and the removal of the file from processing. – The Creditor’s Attorney Requested the Attachment of the Debtors’ Movable Property and Salary Within the Statutory One-Year Period, Therefore the Creditor’s Right to Request Attachment Has Not Been Lost/Since Attachment Was Requested Within the Statutory One-Year Period, There is No Need for a Renewal Fee and Attachment Can Be Requested Directly)
• RENEWAL FEE (If the Creditor Requested Seizure Within One Year, the Failure to Seize the Debtor’s Assets Within the Same One-Year Period Does Not Require the Loss of the Right to Request Seizure and the Removal of the File from Proceedings/ Requesting the Attachment of the Debtor’s Assets Does Not Constitute a Renewal Request – The Creditor’s Right to Request Attachment Does Not Lapse if Attachment is Requested Within the Statutory One-Year Period/There is No Need for a Renewal Order or Renewal Fee, and Attachment May be Requested Directly)
2004/m.78
SUMMARY: The right to request seizure expires one year after the date of notification 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 this one-year period, the enforcement file is removed from the proceedings. In this case, only the enforcement file is removed from the proceedings; the enforcement proceedings do not lapse. The creditor may request seizure in the same enforcement file by submitting a renewal request.
If the creditor has requested seizure within the one-year period, the fact that the debtor’s property has not been seized within the same one-year period does not require the right to request seizure to lapse and, consequently, the enforcement file to be removed from the docket. 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 debtors’ movable property and the debtor’s salary within the statutory one-year period. In this case, for the creditor to be able to request seizure again, it is not necessary to serve the debtor with a renewal order and, consequently, to collect a renewal fee; the creditor may request seizure directly without making a renewal request.
CASE: Following the trial concerning the claim for “cancellation of the official’s action through complaint” between the parties, the Borçka Enforcement (Civil) Court issued a decision dated 10.07.2013 and numbered 2013/2 E., Upon the complainant’s attorney requesting an appeal review of the decision, the Supreme Court of Appeals 12th Civil Chamber issued its decision dated December 5, 2013, numbered 2013/31165 E., 2013/38701 K.,
“…The creditor’s right to request seizure expires one year after the date of notification of the payment order (Article 78/2.C.1 of the Enforcement and Bankruptcy Law). In this case, since the enforcement file will be removed from the proceedings (Article 78/4), the creditor must submit a renewal request in order to request seizure, and this request must be notified to the debtor. On the other hand, paragraph 5 of the same article stipulates that a fee shall be charged upon a renewal request in cases of enforcement not based on a judgment.
In the present case, payment order No. 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, requesting the seizure of the debtors’ movable property and the debtor’s salary, the creditor’s “right to request seizure” has not lapsed. In this case, in order for the creditor to request seizure again, there is no need to serve the debtor with a renewal order and, consequently, to collect a renewal fee, in accordance with Article 78/5 of the EBC. In other words, the creditor can request seizure directly without applying for renewal. Article 110/3 of the EBC stipulates that the creditor is responsible for expenses such as the imposition and maintenance of the attachment. Since this provision does not relate to the renewal fee and the period for requesting attachment, it does not apply in the present case.
Therefore, it is inappropriate for the court to reject the complaint when it should have been accepted…”
The case was overturned on these grounds and remanded for retrial, at the end of which the court upheld its previous decision.
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 reviewing the documents in the file, the following decision was reached:
DECISION: The request concerns the cancellation of an official act through a complaint.
The complainant’s representative stated that an enforcement proceeding without a court order was initiated against the debtors in question at the Borçka Enforcement Office on 11.09.2009, that the payment order was served on all debtors, that the proceeding became final as no objection was filed within the time limit, and that numerous enforcement actions were taken against the debtors. However, since no seizure proceedings were carried out within the period specified in the relevant articles of the Enforcement and Bankruptcy Law No. 2004, it was decided to lift the seizures imposed. Although a petition was filed on 22.04.2013 requesting seizure proceedings, it was decided that the file must first be renewed, and that an application and advance fee must be paid for the renewal. The Borçka Enforcement Office’s action is unjust and constitutes a violation of public order. The Borçka Enforcement Office requested, through a complaint, the cancellation of the decision dated 22.04.2013 titled “Decision Approval Record” issued from the 2009/921 numbered follow-up file and the renewal of the file without a fee.
The Local Court found that in the Borçka Enforcement Office’s follow-up file No. 2009/921, which is the subject of the case, the creditor’s representative requested seizure on March 10, 2010, whereupon the vehicles with license plates 34 TK 498 and 34 ZP 7400 belonging to the debtors were seized on April 11, 2010. Subsequently, on May 26, 2010, the creditor’s attorney requested the seizure of the debtor’s salary, but there is no information or documentation in the file indicating that this seizure was implemented. After this date, the creditor’s representative made no further requests in the file. Considering the date of seizure, it was possible to request the sale of the vehicles until April 11, 2011. Since no seizure was requested until this date, it must be accepted that the seizure lapsed on this date. Since more than one year has passed between the date the attachment lapsed (April 11, 2011) and the date the file was removed from proceedings (December 12, 2012), there is no 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 charged in accordance with the provisions of Article 78/5 of the Enforcement and Bankruptcy Law. The Enforcement Office’s decision to reject the request for renewal due to non-payment of the renewal fee was deemed lawful, and the complaint was dismissed. This decision was overturned by the Special Chamber upon appeal by the complainant’s attorney, based on the reasons explained in the heading section above.
The court issued a decision to uphold the previous reasons.
The decision to uphold the ruling 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 can be dismissed for other reasons after the legal requirement in Articles 78/2 and 4 of the Enforcement and Bankruptcy Code (that the request for seizure be made within one year of the notification of the payment order) has been fulfilled.
As is known, the creditor’s right to request attachment is subject to a one-year period. 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 seizure within the one-year period (Article 78/2 of the Enforcement and Bankruptcy Code) or withdraws the seizure request (made within one year) and does not request seizure again within the same one-year period, the enforcement file is removed from the docket. (Article 78/4) In this case, only the enforcement file is removed from the proceedings; the enforcement proceedings do not lapse. In other words, the enforcement proceedings continue to be pending. In this case, the creditor may request attachment in the same enforcement file by filing a renewal request. (Article 78/5)
Conversely, if the creditor has requested seizure within the one-year period, the fact that the debtor’s property has not been seized within the same one-year period (or even later) does not require the right to request seizure to lapse and, consequently, the enforcement file to be removed from the docket. In this case, the enforcement proceedings remain pending, and the creditor’s request for seizure made within the one-year period (after one year has passed) does not constitute a renewal request within the meaning of Article 78/5 of the Enforcement and Bankruptcy Law. Therefore, in this case, there is no need for the creditor to pay the fee again or for the request to be served on the debtor. (Kuru B.: Enforcement and Bankruptcy Law EI Book, 2013, 2nd Edition, pp. 414, 415).
In the specific case, payment order example 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’s representative requested the seizure of the debtors’ movable property and the debtor’s salary within the statutory one-year period, the creditor’s right to request seizure has not lapsed. In this case, in order for the creditor to be able to request seizure again, pursuant to Article 78/5 of the Enforcement and Bankruptcy Code, it is not necessary to serve a renewal order on the debtor and, consequently, to collect a renewal fee. In other words, the creditor may request seizure directly without filing a renewal request.
Therefore, while the local court should have complied with the Special Chamber’s reversal decision, which was also adopted by the General Assembly of the Court of Appeals, its insistence on the previous decision based on erroneous reasoning is contrary to procedure and law.
Therefore, the decision to resist must be overturned.
CONCLUSION: With the acceptance of the complainant’s attorney’s appeal, the decision to resist is OVERTURNED for the reasons stated in the Special Chamber’s reversal decision. If requested, the appeal fee shall be refunded to the payer. The decision is final, and no further appeal is possible. It was unanimously decided on November 8, 2017.