TC
HIGH
GENERAL LEGAL COUNCIL
E. 2017/12-1147
K. 2017/1304
T. 8.11.2017
• REQUEST FOR CANCELLATION OF THE OFFICIAL’S ACTION UPON COMPLAINT (If the Creditor
Has Filed a Seizure Request Within the Annual Period,
and No Seizure Has Been Placed on the Debtor’s Assets, There Is No Need for the Rights Holder to Request Enforcement
Proceedings Within the Same Annual Period. Cancellation of the Right and Removal of the File from Proceedings
Not Required – The Creditor’s Attorney Has Legally Requested the Seizure of the Debtor’s Real Estate Assets and Wages Within the One-Year Period,
Thus, the Creditor Has No Right to Request a Lien / No Renewal Fee Is Required
• RIGHT TO REQUEST A LIEN (A Lien Cannot Be Requested Directly)
Direct Seizure Cannot Be Requested)
• RIGHT TO REQUEST A LIEN (One Year from the Date of Service of the Payment Order
The Creditor Must File a Mortgage Within One Year
If the Creditor Does Not Make a Request Within This One-Year Period or Withdraws the Request for a Lien
If the Creditor Does Not Request a New Mortgage Transaction, the Follow-up File Will Be Processed
Removal of the Debtor’s Assets Within a One-Year Period
The Right to Request Seizure is Reduced Seizure is Not Required Within One Year
/Legally Required No Expenditure is Required for Renovation
and Seizure may be Requested Directly)
• REQUESTING SEIZURE WITHIN ONE YEAR (Same One-Year.
The debtor’s property cannot be seized during the seizure period.
The right to claim is revoked and the file is removed from the proceedings.
Not required – The creditor’s representative legally obligates the debtors within a one-year period.
After Requesting the Seizure of the Debtor’s Real Estate and Salary, the Creditor Has No Right to Request Seizure
No Right to Request Seizure / No Right to Request Seizure Within a Legal One-Year Period
Since Seizure Has Been Requested, There is No Need to Pay the Renewal Fee Directly
(Mortgage Enforcement Proceedings May Be Requested)
RENEWAL FEE (If the Creditor Requests a Lien Within One Year,
and It Is Determined Within the Same One-Year Period That the Debtor’s Assets Have Been Lost
and a Lien Cannot Be Placed,
This Does Not Require the Case to Be Dismissed / The Debtor’s Assets Are Subject to Lien
Request is not a Renewal Request –
If a lien request has been made within the legal one-year period but the creditor’s
right to request a lien has not expired / Renewal Order
SUMMARY:
The right to request a lien expires one year from the date of service of the payment order and
does not expire. If the creditor does not request a lien within one year
or does not make a request, we can withdraw the seizure request within this one-year period and perform the seizure process again,
and the follow-up file will be removed from the process. In this case, only the follow-up
file will be removed from the process; otherwise, the enforcement process will be initiated. It will not expire. By making a renewal
request, a lien can be placed on the same follow-up file.
If the creditor has filed a request for seizure within one year, the debtor’s
failure to seize the debtor’s assets within the same one-year period does not require the cancellation of the seizure
right and, consequently, the removal of the follow-up file from the proceedings.
In this case, the debtor is requested to seize the assets,
which is not a renewal request.
The creditor’s representative is responsible for managing the debtor’s real estate within a legal one-year period and does not request the attachment of the debtor’s
salary by requesting attachment,
as this is not their right. In this case, for the creditor to be able to request a renewed attachment,
the renewal order must be notified to the debtor, and consequently, the renewal fee must be collected. The creditor may request the attachment directly
without having to file a renewal request.
CASE: “Complaint for the cancellation of an official’s action” between the parties
At the conclusion of the trial, upon the request of the complainant, the Borçka Enforcement (Civil)
Court, dated 10.07.2013 and numbered 2013/2 E.,
2013/12 K., was appealed by the complainant’s attorney,
and the Supreme Court of Appeals 12th Civil Chamber Presidency, dated 05.12.2013 and
2013/31165 E., 2013/38701 K. dated December 5, 2013,
stated that, “…The creditor has the right to request attachment from the date the payment order is served upon them.”
This right expires after one year (IIK.C.1 Art. 78/2). In this case, since the enforcement file
will be removed from the proceedings (Art. 78/4), the creditor must file a renewal request
and notify the debtor of this request in order to request attachment.
The same provision is found in the paragraph on the side; in cases of enforcement without notice,
it is stipulated that a fee will be charged upon request for renewal.
In the specific case, payment order No. 7 was issued to the first debtor on
on September 18, 2009, to the second on September 30, 2009, and to the third on October 1, 2009,
and served by the creditor on March 10, 2010, and May 26, 2010. On the date of service, i.e., within the statutory one-year period, the creditor requested the seizure of the debtor’s real estate and wages to collect the debt, and if the creditor’s
notification date, i.e., within the legal one-year period, the creditor must request the seizure of the debtor’s real estate and wages through attachment proceedings, provided that the creditor’s “right has not lapsed.
” In this case, the creditor may file a new attachment request in accordance with Article 78/5 of the Enforcement and Bankruptcy Code. Pursuant to the provision, a renewal order has been served on the debtor, and no renewal fee is required. In other words, the creditor may directly request attachment without filing a renewal request. Under Article 110/3 of the Enforcement and Bankruptcy Code, the creditor is responsible for expenses related to the placement and storage of the attachment.
Since the renewal of the aforementioned regulation is not related to the fee and the period for requesting attachment, there is no basis for the application in the present case. In this situation, it is inappropriate for the court to accept the complaint and decide to reject it…” Instead of overturning the case on the grounds that the file should be returned at the end of the trial, the court upheld the previous decision. After the General Assembly reviewed the information and the documents in the file, the decision to uphold the previous ruling was appealed within the prescribed timeframe, and the necessary statements were made:
DECISION:
The request concerns the cancellation of the official’s action through a complaint. On September 11, 2009, the representative of the Enforcement and Bankruptcy Directorate initiated enforcement proceedings without a court order against the debtors who were the subject of the complaint. the payment order was served on all debtors, and since no objections were raised during the period in which the proceedings became final, multiple enforcement proceedings were initiated against the debtors.
However, since the attachment proceedings were not carried out within the timeframe specified in the relevant provisions of the Enforcement and Bankruptcy Code No. 2004, it was decided on April 22, 2013, to lift the attachments. Despite the request for seizure proceedings being made in the petition, it was first necessary to renew the case file, and an application and advance fee must be paid for the renewal. It was decided that the action taken by the Borçka Enforcement Office was unjust and disrupted public order.
A lawsuit was filed with the Borçka Enforcement Office Presidency, case number 2009/921,
dated 22.04.2013, requesting the cancellation of the decision that was contrary to the decision titled “Decision Approval Record,” and
it was decided to renew the file without fees as requested in the lawsuit petition. In the enforcement file subject to the case heard by the Local Court on March 10, 2010, the creditor’s attorney filed a request for attachment, and additionally, on April 11, 2010, attachment was imposed on the vehicles with license plates 34 TK 498 and 34 ZP 7400 belonging to the debtors.
Despite the creditor’s attorney requesting on May 26, 2010, that attachment be imposed on the debtor’s salary, there is no information or documentation in the file indicating that such attachment was implemented. After this date, the creditor’s attorney did not make any further requests in the file. Based on the date of seizure, the sale date of the vehicles was April 11, 2011. It was understood that a request should be made as soon as possible, and since it had not yet been accepted, a request for seizure should be made by this date. If the seizure was lifted on this date, since more than one year has passed since the file was removed from the registry on 12.12.2012, there is no irregularity in the removal of the file from the registry. If the renewal of the file removed from the registry is requested,
Pursuant to Article 78/5 of the Enforcement and Bankruptcy Code, a new fee will be charged, and the renewal request will be rejected by the Enforcement Office due to non-payment of the renewal fee. The complaint was dismissed on the grounds that the procedure was in accordance with the law. Upon the objection of the complainant’s attorney, the decision issued by the Special Chamber Presidency was overturned for the reasons explained in the above heading section. and the court issued a decision to uphold the previous grounds.
The plaintiff’s attorney objected to the decision to uphold the previous grounds.
The dispute brought before the General Assembly of the Law through the appeal process, Article 78/2 of the Enforcement and Bankruptcy Law
and the legal requirement in paragraph 4 (a)
if attachment is requested within the year, from the date of notification of the payment order) was fulfilled, while the other was being collected.
It has been decided that the file cannot be removed from follow-up for the reasons stated. As is known, the creditor’s right to request seizure is subject to a one-year period. The right to request seizure expires one year after the payment order is served. (Article 78/2, Paragraph 1 of the Enforcement and Bankruptcy Code) The creditor has a one-year period (Article 78/2 of the Enforcement and Bankruptcy Code). If the enforcement file has been removed from enforcement, the creditor does not file a garnishment request or, if they do file a garnishment request (which they must do within one year) and withdraw it, they cannot file another garnishment request within the same one-year period. (Article 78/4) In this case, the enforcement file is only removed from the proceedings; otherwise, the enforcement proceedings do not lapse.
Therefore, the enforcement proceedings remain at the point where they were suspended. In this case, the creditor may request renewal and seek attachment on the enforcement file. (Article 78/5) On the other hand, if the creditor has filed a garnishment request within the one-year period, the inability to garnish the debtor’s assets within the same one-year period (or thereafter) reduces the right to request garnishment and therefore does not require the removal of the enforcement file from the proceedings. In this case, the enforcement proceedings remain at least where they were, and the creditor’s request for attachment within one year (after one year has passed) does not constitute a renewal request under Article 78/5 of the Enforcement and Bankruptcy Law. In this case, the creditor will be required to reimburse the fee; there is no need to pay it or notify the debtor of the request.
(Dry B.: Enforcement and Bankruptcy Law EI Book, 2013, 2nd Edition, pp. 414, 415). In a specific case, in example 7, the first debtor was issued a payment order on September 18, 2009, for September 30, 2009, the second on October 1, 2009, and the third on October 1, 2009. The creditor’s attorney notified the debtors within the statutory one-year period, requesting the seizure of the debtor’s real estate and wages; however, the creditor has no right to request seizure. In this case, the creditor
pursuant to Article 78/5 of the Enforcement and Bankruptcy Code, the debtor
must be served with a renewal order, and therefore a renewal fee must be collected, meaning that
the creditor may directly request seizure
without first making a renewal request.
Indeed, the law adopted by the local court and the General Assembly of the Turkish Grand National Assembly,
while requiring compliance with the previous decision to overturn the Special Chamber’s decision,
resisting the decision is contrary to procedure and law.
Therefore, the decision to resist must be overturned.
CONCLUSION:
The decision to resist the acceptance of the objections raised by the complainant’s attorney,
in the event of the decision to overturn the Special Chamber’s decision to demolish the building,
if requested, the advance fee for the objection shall be refunded to the person who paid it, and the path for correcting the decision
shall be opened. This decision was made unanimously on November 8, 2017.