Request For Cancellation Of The Official Procedure By Way Of Complaint
T.C.
COURT OF CASSATION
GENERAL ASSEMBLY OF CIVIL LAW
E. 2017/12-1147
K. 2017/1304
T. 8.11.2017
• REQUEST FOR CANCELLATION OF THE OFFICIAL PROCEDURE BY WAY OF 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 Result in the Loss of the Right to Request Seizure
and the Removal of the File from the Proceedings
– Creditor’s Representative Having Requested the Attachment of the Debtors’ Movable Property and the Debtor’s Salary Within a Legal One-Year Period Does Not Extinguish the Creditor’s Right to Request Attachment/No Renewal Fee Required
Attachment May Be Requested Directly)
• RIGHT TO REQUEST SEIZURE (SHALL EXPIRE ONE YEAR FROM 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 Enforcement File Will Be Removed from Processing
– The Fact That the Debtor’s Assets Could Not Be Seized Within the One-Year Period Does Not Require the Right to Request Seizure to Be Waived/Since Attachment Was Requested Within the Statutory One-Year Period No Renewal Fee Is Required and Attachment May Be Requested Directly)
• REQUEST FOR ATTACHMENT WITHIN ONE YEAR (Within the Same One-Year
Period, the Debtor’s Assets Not Being Seized Does Not Require the Loss of the Right to Request Seizure
and the Removal of the File from the Proceedings
– The Creditor’s Representative Requested the Seizure of the Debtors’ Movable Property and the Debtor’s Salary Within a Statutory One-Year Period
The Creditor’s Right to Request Seizure Has Not Been Lost/Since Seizure Was Requested Within the Legal One-Year Period
There Is No Need for a Renewal Fee and Seizure Can Be Requested Directly)
• RENEWAL FEE (If the Creditor Has Requested Seizure Within the One-Year Period
Within the Same One-Year Period, the Failure to Attach the Debtor’s Assets
Does Not Require the Loss of the Right to Request Attachment and
Removal of the File from Proceedings/The Request for Attachment of the Debtor’s Assets
Does Not Constitute a Renewal Request –
The Creditor’s Right to Request Seizure Does Not Lapse by Requesting Seizure Within the Statutory One-Year Period/The Renewal Order
SUMMARY: The right to request seizure lapses one year after the date of service 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 processing. If the creditor does not request seizure within the one-year period
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,
the enforcement file is only 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 loss of the right to request seizure and, consequently, the removal of the enforcement file from the docket. In this case, requesting the seizure of the debtor’s property does not constitute a renewal request.
If the creditor’s representative has requested the seizure of the debtor’s 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, for the creditor to request seizure again,
it is not necessary to serve the renewal order on the debtor and, consequently, to collect the renewal fee;
the creditor may request seizure directly without making a renewal request.
CASE: Following the trial concerning the request 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.,
2013/12 K. rejecting the complaint. Upon the complainant’s attorney requesting an appeal review of this decision,
the 12th Civil Chamber of the Court of Cassation issued a decision dated 05.12.2013 and
2013/31165 E., 2013/38701 K. dated December 5, 2013,
stated that “…The creditor’s right to request seizure expires one year after the date of notification of the payment order (IİK article 78/2.C.1). 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 served on the debtor. On the other hand,
paragraph 5 of the same article stipulates that in cases of enforcement not based on a judgment,
a fee shall be charged upon the renewal request.