TURKISH SUPREME COURT
8th Civil Chamber
Based on: 2013/223
Decision No.: 2013/9173
Date of Decision: June 13, 2013
ACTION FOR THE CANCELLATION OF AN OBJECTION – ENFORCEMENT PROCEEDINGS INITIATED DUE TO A CLAIM ARISING FROM THE LIQUIDATION OF PROPERTY – WITHDRAWAL OF ALL FUNDS FROM A JOINT ACCOUNT HOLDER’S BANK ACCOUNT BY A SINGLE PARTY – PARTIAL GRANT OF THE CLAIM – VIOLATION OF THE JUDGMENT
SUMMARY: On June 9, 2003, when the divorce case was filed and the marital property regime ended, all funds were present in the account; the euros withdrawn approximately three months before the divorce decree became final and the marriage ended on July 3, 2003, could not have been spent on household needs within such a short period, as this does not align with the normal course of life and is unacceptable. Based on these explanations, it was incorrect to rule that 20% (twenty percent) of the compensation for the denial of enforcement should be paid due to the finality of the case (claim); this would have allowed for the dismissal of the appeal and the continuation of the proceedings with a partial grant. Ruling for a complete denial, however, was incorrect.
(2004 Civil Code Art. 67) (6100 Civil Code Arts. 23, 33) (1086 Civil Code Art. 25) (4721 Civil Code Art. 688) (13th Civil Chamber, March 24, 2008, Case No. 2007/14801, Decision No. 2008/4078)
Case: CB v. H. (B.) I. 6. Bakırköy 6. (Appeal regarding the dismissal of the request to dismiss the appeal arising from the collection of a contribution share). Decision: Although the plaintiff’s attorney requested that the decision dated December 29, 2010, No. 150/1066, issued by the Family Court within the attorney’s term of office, be reviewed by the Supreme Court; the file was reviewed and deemed necessary:
Decision: The plaintiff stated that the defendant’s spouse withdrew 17 euros from the joint account at CB Tekstilbank Branch 52.168 in Kayseri, asserting that this amount constituted the plaintiff’s savings accumulated during the marriage. The plaintiff initiated enforcement proceedings against the defendant for failing to halt the withdrawal and for proceeding with the enforcement despite the defendant’s appeal, resulting in the withdrawal of 40% of the amount. the plaintiff initiated enforcement proceedings after the defendant prevented the withdrawal of this amount. The plaintiff demanded compensation of at least 40% due to the defendant’s obstruction of the withdrawal.
Defendant HBI and his assistant argued for the dismissal of the case.
The court ruled to dismiss the case on the grounds that, since the plaintiff and defendant shared a joint bank account, both parties had the right to withdraw the funds independently, and ordered the plaintiff to pay 40% in compensation to the defendant. The plaintiff filed an appeal through his attorney during the appeal period.
It is the judge’s duty to clarify the facts, assign legal character to the parties, and determine the applicable provision of law (Turkish Civil Code No. 6100, Art. 33). According to the manner in which the claim was raised, the plaintiff’s attorney in the case stated that he had objected to the enforcement proceedings initiated against the defendant (debtor) pursuant to Article 67, based on claims arising from the liquidation of assets, and therefore requested their cancellation.
The parties were married on September 14, 1990, and were divorced upon the finalization of the decision granting the divorce, which was filed on June 9, 2003, on July 3, 2003. A joint account was opened at the Tekstilbank Kayseri Branch on December 24, 2001, by the plaintiff and the defendant, and the account was closed on April 10, 2003, after the defendant withdrew funds. According to the agreement made with the bank regarding the opening of the account and the decision between the two parties, the account is a joint account, and both parties have the authority to withdraw funds together or separately; however, liability is joint and mutual under the terms of the agreement. The bank’s relevant decision does not specify the parties’ shares. In such cases, the provision of Article 688/2 of the Turkish Civil Code must be considered.
According to the relevant paragraph of the second paragraph of the aforementioned article, it must be presumed that the shares in joint bank accounts where the shares are not specified in accordance with the relevant provision are equal. The Supreme Court and our department’s ruling also align with this approach. It is necessary to reach an agreement regarding the required share in the joint bank account opened by the plaintiff and defendant during their marriage through their own free will, and to accept that they acted in accordance with that ratio. The fact that all funds in the bank account were withdrawn by one of the joint account holders alone does not imply that the entire amount was donated to that account holder or belongs to them.
When a separate divorce case was filed on June 9, 2003, and the regime of property division came to an end, all the money was still in the account; the 54,341 euros withdrawn approximately three months before July 3, 2003—the date the divorce decree became final and the marriage ended— to have been spent on household needs within such a short period does not align with the normal course of life and is unacceptable. Based on these explanations, the dismissal of the appeal is determined by the acceptance of the claim (request) in half, provided that there is a liquid (specific) asset available to ensure the continuation of proceedings. Pursuant to Article 67(2) of the Code, it is incorrect to completely reject the claim without written justification when a decision should have been made to award a 20% (twenty percent) enforcement compensation.
On the other hand, the Supreme Court’s decision is set forth in Article 13. In its ruling dated March 24, 2008, Case No. 2007/14801 E., Decision No. 2008/4078, the Court held: <… since the case concerns the division of property acquired during the marriage, the competent court is not the Criminal Court of First Instance but the Family Court… > Since the decision was rendered in accordance with Article 23/2 of the Code of Civil Procedure (Article 25/final of the former Code of Civil Procedure) and has become final, this decision is binding on the Local Court.
Conclusion: For all these reasons, the Local Court’s decision, which is deemed contrary to procedure and law, is set aside upon acceptance of the objections raised by the plaintiff’s counsel, in accordance with Article 3 of the Transitional Provisions of the Civil Procedure Code No. 6100 and Decision No. 1086, pursuant to Article 428 of the Civil Procedure Code and Article 440/I of the Supreme Court, it was decided by a majority vote on June 13, 2013, that a request for correction may be filed within 15 days from the date of service of the decision, and that the 18.40 TL advance payment, if requested, shall be refunded to the plaintiff.
DISSENTING OPINION
The plaintiff, CB, summarizes the fees in the completed complaint; <… In Case No. 2003/2536 of the Bağcılar 1st Court, regarding the enforcement proceedings against the defendant recorded at the Enforcement Directorate, due to objections regarding what was done with the documents in the 48 non-judicial examples, the debtor (defendant), essentially, despite opening a joint account due to a trust arrangement with his spouse, the enforcement proceedings were suspended due to objections regarding the misuse of the trust; furthermore, because the defendant refused to pay at least 40% of the enforcement compensation regarding the continuation of the proceedings after the first-instance court waived its right to appeal within the appeal period, the plaintiff has filed a lawsuit requesting a decision to impose litigation costs on the defendant.
The defendant, in a petition dated May 14, 2004, requested authorization and summarized their statements on the merits: <…the parties agreed that, prior to the divorce, the passenger vehicles, motorcycles, and the spouses’ dowry items remained with the plaintiff, and that the funds in the joint account belonged solely to him; the plaintiff does not accept the filed lawsuit…>.
In the Court’s initial decision dated March 30, 2007: upon the plaintiff’s counsel’s objection, the Court ruled to dismiss the case for lack of proof: As also stated in the decision of the Directorate of Civil Affairs of the High Court dated March 24, 2008, No. 2007/14801, 2008/4078, <… the court competent to hear the case is the Family Court, and since the lawsuit, filed upon the defendant’s request, pertains to the division of property acquired during the marriage, the competent court to hear the case is the Family Court, and in light of this jurisdiction, the local court’s decision was not reviewed on other grounds> On December 23, 2008, the Bakırköy 11th Criminal Court of First Instance issued a decision to remove the defendant from office in compliance with the declaration of misconduct.
Upon the decision becoming final, the case file was transferred to the Family Court. In summary, in the decision dated December 29, 2010, which is the subject of the appeal, the appeal was dismissed, and it was ordered that the defendant pay 40% of the compensation for the refusal of enforcement collected from the plaintiff. The plaintiff filed an appeal through his attorney with a reasoned petition within the time limit for filing the appeal.
The evidence collected is included in the entire case file; the evidence collected by the creditor’s (plaintiff’s) attorney on September 10, 2003, by Bağcılar 1 is also included in the file. In the enforcement proceeding file registered under No. 2003/2536 at the Enforcement Directorate, an indefinite enforcement action was initiated against the defendant (debtor) for a total of 54,341 euros, including 10% statutory interest, supported by 48 document copies.
The debtor (defendant) filed an objection with the Erdemli Enforcement Directorate via a petition dated September 22, 2003. Furthermore, the creditor (plaintiff), as clearly stated in the attorney’s petition and as defined in the complaint, requests that the court rule to continue the proceedings against the defendant, seeking the dismissal of the objection regarding the enforcement proceedings and the payment of at least 40% in non-enforcement damages. The court proceeded with the proceedings under the general provisions and, as explained above, ruled on March 30, 2007, to dismiss the appeal, which could not be substantiated.
In the present case, the 13th Civil Chamber of the Supreme Court has upheld the case regarding the aforementioned provision. Pursuant to Articles 202 et seq. of the Civil Code, it classified the case as one concerning the regime of liquidation of assets and stated that the tax issue must be taken into account because it relates to public order. However, the lower court overturned this decision. According to Supreme Court precedents, by complying with the provision in question, the parties have established a right acquired in accordance with due process, both in their favor and against them.
However, since the present case was initially filed in accordance with due process, it is not a case under the regime of property division. Rather, it is a case seeking compensation for the rejection of enforcement due to an objection unrelated to the enforcement proceedings and the annulment of the appeal. In fact, while it is correct that this case should be conducted in accordance with general provisions and decided as stated in the initial ruling, it is possible to file a lawsuit with the Family Court for the liquidation of the property division regime within 10 years from the date the divorce case was filed. Supreme Court, 13th Civil Chamber: If the decision in question is procedurally flawed and contrary to law, a right has been established in accordance with proper procedure to comply with it.
Apart from all this, pursuant to Articles 74 and 76 of the Code of Civil Procedure (HUMK), the authority to determine whether the parties have reported the facts in accordance with the provisions of Article 33 of the HUMK rests with the judge. Although the meaning of this general and legal rule is left to the discretion of the courts due to the request in the petition not being clearly stated or understood, in the present case, the request was filed within the prescribed time limit in accordance with general provisions and in response to an objection to enforcement proceedings.
The cancellation of an appeal filed pursuant to Article 67 of the Code of Civil Procedure is at issue. For these reasons, no further explanation is required under Articles 74, 76, and 33 of the Code of Civil Procedure. Apart from all this, as stated in the majority opinion, the parties were married on September 14, 1990, and pursuant to the ruling set forth in the decision of the Sarıoğlan Criminal Court of First Instance dated June 19, 2003, No. 2003/75-75, and Article 166/1 of the Turkish Civil Code, the court granted the divorce petition filed by the plaintiff, Handan Bal, and this decision became final on July 3, 2003, without any appeal.
According to the response received from Tekstilbank, where a joint account is held, a joint account was opened in the names of the parties; one party has the right to close the joint account without notifying the other, and liability is mutual. The dispute centers on whether the dismissal of the appeal—filed in accordance with general provisions following the defendant’s objection during the marriage—should be evaluated under the regime of property division, or whether the funds in question should be awarded to the plaintiff; for if evaluated under the property division regime, it is undisputed that the funds were withdrawn by the defendant.
Since the transaction was conducted in accordance with the declaration of breach, an investigation into all the parties’ income must be conducted, taking into account the opening dates of accounts numbered 152 and 170 under the Turkish Civil Code. Considering the plaintiff’s statements in the complaint and subsequent pleadings, it must be accepted—particularly within the framework of the general investigation—that half of the share was given to the spouse (i.e., a secret gift was made). As for the remaining 1/2 share, a thorough investigation and examination must be conducted under the regime of property division.
Since the case is being prosecuted under the regime of property division pursuant to the violation provision, there is no need to pursue the cancellation of the appeal in this instance; a 20% execution refusal indemnity must be awarded. Additionally, the defendant’s father, during the initial stages of the marriage with the plaintiff on November 30, 1990, regarding the transfer of personal property specified in the contract from outside sources, and since the plaintiff did not object to these requests, the defendant, during the court proceedings, it was noted that an arrangement existed regarding the retention of seven of the bonds dated November 30, 1990, under the plaintiff’s responsibility, and the transfer of funds from the plaintiff’s bank account upon the plaintiff’s request.
For all the reasons I have explained, I could not concur with the majority opinion of the Chamber, which manifested itself as a clear distortion. Due to the reasons I have stated and the amount excluded from the secret donation, I am of the opinion that an investigation should be conducted in accordance with Articles 202 and others, 152, and 170 of the Turkish Civil Code, taking the relevant provisions into account. June 13, 2013
Pursuant to Article 67(2) of Law No. 2004, which entered into force on January 30, 2004, and was addressed in the case filed to overturn the appellate decision; in such a case, if a judgment of unfairness is rendered despite the debtor’s objection, and it is determined that the debtor acted unfairly and in bad faith during the proceedings, the creditor, upon the other party’s request, shall reduce the awarded compensation amount by forty percent or order an appropriate compensation, taking into account the circumstances of both parties and depending on the nature of the case. The compensation rate specified in Article 11 of the aforementioned law was substantively amended to twenty percent by Law No. 6352, which entered into force on July 2, 2012.
Each case (enforcement proceeding) is resolved according to the conditions prevailing at the time it was filed. One of the fundamental principles of the rule of law is that the person or persons involved in a legal proceeding must know, in advance, what they will gain or lose under the laws in force at the conclusion of that proceeding. In other words, ignorance of the law is no excuse; except in cases necessitated by the public interest, there is no room for chance or surprise in the legal system; in such cases, subsequent legal changes cannot create a new situation favoring one party and disadvantageous to the other. Those seeking a legal resolution must make their decisions by researching and examining the existing regulations.
In the specific case at hand, I believe it is incorrect that the rejection compensation, which should have been applied at forty percent according to the legal regulation in effect on the date the appeal for annulment was filed, was determined by a respectable majority in the statement of violation to be twenty percent. Aside from the points mentioned above, I fully concur with the majority’s opinion. June 13, 2013 (¤¤)