The Competent Authority For Objections To The Valuation Is The Enforcement Court.
Republic of Turkey
COURT OF CASSATION
20th CIVIL CHAMBER
CASE NO: 2017/9857
DECISION NO: 2017/9650
DATE OF DECISION: 20.11.2017
>>THE COMPETENT COURT FOR OBJECTIONS TO VALUATION IS THE ENFORCEMENT COURT.
SUMMARY: The competent court for objections to valuation is the Enforcement Court. If the valuation was made by another Enforcement Directorate through an instruction, the authority to examine objections to the valuation also belongs to the Enforcemet Court to which that Enforcement Directorate is affiliated.
In the case between the parties… Due to the separate decisions of lack of jurisdiction issued by the Enforcement Court and… 11th Enforcement Court, although the final decision in the case was issued after the Regional Courts of Appeal became operational, the fact that courts within the jurisdiction of two different Regional Courts of Appeal mutually issued decisions of lack of jurisdiction and Article 36/3 of Law No. 5235 , the jurisdiction of the civil chambers of the Regional Courts of Justice is to resolve conflicts of jurisdiction and duties between the first-instance civil courts within their jurisdiction. Therefore, all documents in the file sent for the determination of the place of jurisdiction were examined, and the following decision was reached:
DECISION
The case concerns an objection to the valuation….
The Enforcement Court; … In its instruction letter dated 12/07/2016 to the … Enforcement Office, the … Enforcement Office requested that the valuation be carried out for the purpose of selling the vehicle seized exclusively in the … District, … The Enforcement Office acted in accordance with the instruction, and on the grounds that the request was not of a general nature seeking the seizure of the debtor’s movable and immovable property and rights and receivables held by third parties, but was written in the form of a specific seizure requesting the seizure of a specific item, a decision of lack of jurisdiction was rendered.
… The 11th Enforcement Court of Justice ruled that, pursuant to Article 128/a-1 of the Enforcement and Bankruptcy Code, the complaint regarding the valuation must be filed with the enforcement court to which the enforcement office conducting the valuation is affiliated, and that the valuation was conducted based on Enforcement Office file no. 2016/89, and therefore the competent court is … the enforcement court to which the Enforcement Directorate is affiliated.
Article 4/1 of Enforcement and Bankruptcy Law No. 2004 states that “…complaints and objections against the proceedings of enforcement and bankruptcy offices shall be examined by the enforcement court judge or the judge assigned to this task by law…”
Article 79 of the same Law states that “The enforcement office shall carry out the seizure within three days of the request. If the property to be seized is located elsewhere, it shall immediately notify the enforcement office where the property is located to carry out the seizure. In this case, complaints regarding the seizure shall be resolved by the enforcement court to which the requested enforcement office is subject…”
As can be understood from the aforementioned legal regulations, if the enforcement proceedings are conducted by a particular enforcement office, any objections and complaints related to these proceedings shall be resolved by the enforcement court to which the enforcement office conducting the proceedings is affiliated. However, if the assets to be seized are located elsewhere, complaints regarding the seizure carried out by the enforcement office where the assets are located by order shall be examined by the enforcement court to which the enforcement office that carried out the seizure is affiliated.
In the present case, since the valuation was made by the Enforcement Directorate by way of instruction, the authority to examine objections regarding the valuation belongs to the 11th Enforcement Court.
CONCLUSION: For the reasons explained above; pursuant to Articles 21 and 22 of the Code of Civil Procedure No. 6100; it was unanimously decided on 20/11/2017 that the 11th Enforcement Court shall be DESIGNATED AS THE JURISDICTION.