TC
HIGH
11th Law Office
CASE NO: 2016/9590
DECISION NO: 2513
DECISION DATE: 09.04.2018
PENSION CANNOT BE BLOCKED DUE TO A DEBT GUARANTEED BY THE PENSIONER.
In the case numbered 2016/28 and dated 13/04/2016, filed between the parties by the Artvin Civil Court of First Instance, it was understood that the appeal and review petition for Decision No. 2016/335, submitted by the plaintiff’s attorney, was submitted within the appeal period. A petition was prepared for Gül Duman Pekcan with the audit report and heard by the judge. After reading and reviewing all the petitions, court petitions, trial minutes, and documents in the file, and discussing the nature of the case, the following points were examined:
The plaintiff’s attorney stated that his client’s salary was deposited at the defendant bank’s Artvin Branch, that the Artvin Enforcement Directorate initiated enforcement proceedings against his spouse and client on the basis of the defendant bank’s credit debt not being paid, through enforcement file no. 2014/… dated …, that 1/4 of his salary was deducted for this file, and that the remaining 3/4 was blocked again by the defendant bank. The attorney stated that it was unknown how much had been collected again from the salary by the defendant bank up to that date. that this deduction by the defendant bank was unjust and unlawful, and requested that the excess garnishment of 1,000.00 TL, including interest from the date of collection, be pursued according to the merits of the case, and that the block placed on the defendant’s salary be lifted.
Th e defendant’s attorney stated that if the client initiates enforcement proceedings based on the file mentioned in the petition submitted to the bank, a set-off will be made, and the file is in the Enforcement Directorate Artvin 2009/2 instruction file…
that no set-off was correctly made from this file for the debt deducted and terminated after this date and until 2012, that the person or institution to whom the plaintiff is the creditor did not notify the court, that the plaintiff is the guarantor according to the general cash and non-cash credit agreement signed with the client and the bank, that the client has the right of set-off and deduction, meaning that the bank can deduct the money deposited into the debtor’s account against the credit debt, that the plaintiff also signed this agreement, that the agreement is commercial in nature, and that the client gave consent in accordance with Article 67 of this agreement.
The defendant argued that it made the discount in question for the purpose of collecting the receivable in accordance with the article and requested that the case be dismissed on the grounds that it lacked legal basis.
Upon reviewing the entire case file opened by the court, it was determined that the credit agreement signed by the plaintiff as a joint guarantor was a commercial credit, that Article 67 of the agreement regulated the defendant bank’s right of pledge and set-off, and that the defendant bank would not be willing to refund the deductions made within this scope, and the case was dismissed. The decision
was appealed by the plaintiff’s attorney.
The case concerns the cancellation of the deduction made by the defendant bank from the plaintiff guarantor’s salary account. As a result of the trial conducted by the court, it was ruled that the credit agreement signed by the plaintiff as a joint guarantor was of a commercial credit nature and that the bank’s deduction was not unlawful because the defendant bank’s right of lien and set-off was regulated in Article 67 of the agreement, and the case was dismissed.
However, upon the plaintiff’s failure to pay the credit debt, the defendant is obligated to terminate Article 67 of the contract. Blocking the plaintiff’s retirement pension based on the authority granted by Article 93 of Law No. 5510. According to Article 83. Although the agreement made with the creditor that it is not possible to place a lien on immovable property that is not subject to lien pursuant to the article is not valid, since it was not possible to place a lien on immovable property that was not subject to lien during the period prior to the lien, since there is no attachment on the plaintiff’s salary, the defendant’s application to block the salary account at the bank resulted in attachment, and it was decided that the case should be accepted, it was understood that establishing a written ruling required an inappropriate violation.
CONCLUSION: For the reasons explained above, it was unanimously decided on 09/04/2018 to accept the plaintiff’s attorney’s appeal, to REVERSE the decision in favor of the plaintiff, and to refund the appeal fee paid in advance to the plaintiff upon his request.