Supreme Court of Turkey, 12th Civil Chamber, Case No. 2016/1954, Decision No. 2016/15638, Date: 02.06.2016
Pursuant to Article 89/1, a garnishment notice may be sent to a company partner / The Supreme Court has changed its case law (Cancellation of Garnishment Notices – IIK Previously by the Department. Article 89 From the Perspective of the Company Partner From the Perspective of the Company The Need for the Third Party Not to Be Accepted as a Debtor / A Change Has Been Made in Case Law Regarding the Company Due to Enforcement Proceedings Against the Debtor, the Debtor Has Been Transferred to the Company Partner for the Attachment of the Company’s Rights and Receivables. Article 89. A Seizure Notice May Be Sent in Accordance with the Article)
3. THE STATUS OF THE COMPANY PARTNER FROM THE PERSPECTIVE OF THE DEBTOR COMPANY. (Cancellation of Enforcement Notices – 3. From the Perspective of the Debtor Company, the Partner of the Apartment Company. While it was thought that Enforcement Notice No. 89/1 could not be sent to the Company Partner, the HGK Decision dated 11.05.2016 was amended with Precedent No. 3 regarding the Partner of the Debtor Company. The sending of Enforcement Notice No. 89/1 to the complainants will be accepted as a person/company partner according to the law.
ATTACHMENT OF THE COMPANY’S RIGHTS AND RECEIVABLES (Enforcement Proceedings Against the Company Partner for the Attachment of the Company’s Rights and Receivables as a Debtor. Art. 89. A Notice of Attachment May Be Sent to the Company Partner in Accordance with Enforcement Proceedings. 3. Number of Persons from the Company’s Perspective in the Application of Art. 89)
ENFORCEMENT AND BANKRUPTCY LAW ARTICLE 89 THE SITUATION OF THE COMPANY PARTNER IN THE APPLICATION (3 From the Company’s Perspective – There is no unlawful direction in sending a Seizure Notice No. 89/1 to the Company Partner for the Seizure of the Rights and Receivables of the Debtor Company due to Enforcement Proceedings Conducted Against the Debtor Company –
2004/Article 89
6102/Art. 124, 125, 128
SUMMARY:
Pursuant to the decision of the General Assembly dated 11.05.2016 and numbered 2014/12-1078 and decision numbered 2016/1600, in the event of the transfer of the company’s receivables and claims to the company’s partner for the seizure of the company’s receivables and claims, the transfer of the company’s receivables and claims to the company’s partner for the seizure of the company’s receivables and claims, the attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the
company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and
claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose of attachment of the company’s receivables and claims for the purpose for the purpose of attaching the company’s receivables and rights and claims, for the purpose of attaching the company’s receivables and rights and claims, for the purpose of attaching the company’s receivables and rights and claims, for the purpose of attaching the company’s receivables and rights and claims, for the purpose of attaching the company’s receivables and rights and claims,
for the purpose of attaching the company’s receivables and rights and claims, for the purpose of attaching the company’s receivables and rights and claims, for the purpose of attaching the company’s receivables and rights and claims, for the purpose of attaching the company’s receivables and rights and claims, for the purpose of attaching the company’s receivables and rights and claims, for the In the Chamber, first of all, pursuant to Article 89, if the company’s partner is not considered a third party in relation to the company, the principle adopted by the General Assembly has been accepted by amending the case law in accordance with the said decision.
In this case, the company’s partner is the complainant in relation to the enforcement proceedings against the company. There is no violation of the law in submitting the attachment notice pursuant to Article 89.
In this case, the partner of the company is the complainant due to the enforcement proceedings against the company. Since there is no violation of the law in submitting the seizure notice in accordance with Article 89, the court’s decision to accept the complaint instead of rejecting it is incorrect.
FACTS: After the creditor requested the decision of the court of appeal, the file related to this case was sent from one chamber to another, and after the report prepared by the judge reviewing the file was heard and all the documents in the file were read and examined, the case was decided upon as necessary.
DECISION:
Voluntary eviction, collection of income, and initiation of enforcement proceedings against the debtor by the creditor due to unpaid rent under the lease agreement with the company; the complainant’s partner pursuing the debtor in the enforcement officer’s application to the court… A… In case EBL 89 against the complainant, E Hotel Management, Tourism, and Trade Limited Company, it was understood that the attachment notice was sent in accordance with the relevant article, and the company partners requested that the decision to send the attachment notice dated 02.03.2015 be revoked on the grounds that the debtor could not be considered a third party in relation to the company, and the court accepted the complaint.
According to Article 89 of the IIK, if a claim that does not belong to the bearer or is not secured by a negotiable instrument, or another claim, or movable property belonging to the debtor held by a third party is seized, the enforcement officer shall hereafter, the real or legal person who owes the debtor is obliged to deliver these goods to the enforcement office, unless they have the right to collect the debt from the enforcement office or to deliver the movable property held by a third party, which is no longer valid; otherwise, they shall report the value of the goods to the enforcement office (Seizure Notice). The provisions of paragraphs 2, 3, and 4 shall also be notified to the third party in this seizure notification.
Article 124 and Article 125 of the Turkish Commercial Code No. 6102 state that limited liability companies are capital companies. Article 128 of this Code states that commercial companies have legal personality and can exercise all their rights and assume debts within the framework of Article 48 of the Turkish Civil Code. The article also states that each partner is liable to the company for the capital they have undertaken to contribute in accordance with the company contract, duly drawn up and signed.
In the examination of the attachment notice No. 89/1 dated 02.03.2015 for the debt of E… A… Hotel Tourism Trade Limited Company, the notice sent personally to the plaintiffs stated, “It has been decided to attach the rights and receivables that have arisen and will arise with respect to the debtor company and the amount to be paid to the company.” As a general rule, all property and rights of the debtor are subject to seizure.
For exemption from seizure, there must be an explicit provision in the Enforcement and Bankruptcy Law or in a special law. In other words, for an asset or right to be considered exempt from seizure, there must be an explicit provision in the law on this matter or a legal regulation in the sense of substantive law that prevents the sale and transfer of that asset or right. 3. According to the company, a company partner has a separate personality from the legal personality of the company in which they are a partner and is a natural person within the meaning of the Turkish Commercial Code.
The company partners described above in accordance with the provisions of the Turkish Commercial Code undertake, with the company’s approval, to suspend the capital contributed by the company partner to the debtor and the receivables through attachment; this is a legal regulation whereby the capital can be collected through attachment. Furthermore, the debtor company may have receivables arising entirely from private law and convertible into cash, other than the capital debt owed to the company partner by a third party; pursuant to Article 89 of the Turkish Commercial Code, it is undoubtedly possible that there may be other rights and receivables that can be seized under this article.
Our Chamber ranks third in terms of the company partner, i.e., the debtor company. The company believes that the attachment notice numbered 89/1 cannot be sent to the partner because the partner should not be considered a natural person. However, according to the HSI’s ruling No. 2014/12-1078 dated 11.05.2016 and our Chamber’s changing rulings in light of the cases explained above, the company partner ranks third in terms of the debtor company. Since the company partner is considered a natural person, there is no violation of the law in sending the attachment notice numbered 89/1 to the complainants, and the court should decide to reject the complaint; the ruling regarding the acceptance of the complaint is erroneous.
CONCLUSION: For the reasons stated above, the court’s decision to accept the creditor’s objections was made in accordance with Article 366 of the IIK and Article 428 of the IK. Pursuant to these articles, it was unanimously decided on 06/02/2016 to CANCEL the decision, to refund the fee previously collected upon request, and to provide a clear path for correction within 10 days from the date of notification of the decision.