Cancellation of the Officer’s Operation by Way of Complaint – Supreme Court Decision

T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
E. 2017/12-1147
K. 2017/1304
T. 8.11.2017
* REQUEST CANCELLATION OF THE OFFICIAL TRANSACTION BY WAY OF COMPLAINT (IF THE CREDITOR HAS REQUESTED A LIEN WITHIN A ONE–YEAR PERIOD, THE FAILURE TO SEIZE THE DEBTOR’S PROPERTY WITHIN THE SAME ONE-YEAR PERIOD DOES NOT REQUIRE THAT THE RIGHT TO REQUEST A LIEN BE REDUCED AND THE FILE BE REMOVED FROM THE TRANSACTION – THE CREDITOR’S ATTORNEY HAS REQUESTED THE SEIZURE OF THE DEBTORS’ SECURITIES AND THE DEBTOR’S SALARY WITHIN A LEGAL ONE-YEAR PERIOD, BUT THE CREDITOR’S RIGHT TO REQUEST A LIEN IS NOT REDUCED / THERE IS NO NEED FOR A RENEWAL FEE AND A DIRECT LIEN CAN BE REQUESTED)
* THE RIGHT TO REQUEST A LIEN (THE PAYMENT ORDER WILL BE REDUCED ONE YEAR AFTER THE NOTIFICATION DATE / THE PAYEE WILL NOT REQUEST A LIEN WITHIN ONE YEAR OR IF THE CREDITOR DOES NOT REQUEST A LIEN AGAIN WITHIN ONE YEAR BY WITHDRAWING THE LIEN REQUEST, THE TRACKING FILE WILL BE REMOVED FROM THE TRANSACTION – THE FACT THAT THE DEBTOR’S PROPERTY WAS NOT SEIZED WITHIN ONE YEAR DOES NOT REQUIRE THE RIGHT TO REQUEST A LIEN TO BE REDUCED / SINCE THE LIEN WAS REQUESTED WITHIN A LEGAL ONE-YEAR PERIOD, THERE IS NO NEED FOR A RENEWAL FEE AND A LIEN CAN BE REQUESTED DIRECTLY)
• REQUESTING A LIEN WITHIN ONE YEAR (THE FACT THAT THE DEBTOR’S PROPERTY COULD NOT BE SEIZED WITHIN THE SAME ONE–YEAR PERIOD DOES NOT REQUIRE THAT THE RIGHT TO REQUEST A LIEN BE REDUCED AND THE FILE BE REMOVED FROM THE TRANSACTION – THE CREDITOR’S ATTORNEY REQUESTED THE SEIZURE OF THE DEBTORS’ SECURITIES AND THE DEBTOR’S SALARY WITHIN A LEGAL ONE-YEAR PERIOD, BUT THE CREDITOR’S RIGHT TO REQUEST A LIEN DID NOT DECREASE / SINCE THE LIEN WAS REQUESTED WITHIN A LEGAL ONE-YEAR PERIOD, THERE IS NO NEED FOR A RENEWAL FEE AND A DIRECT LIEN CAN BE REQUESTED)
* RENEWAL FEE (IF THE CREDITOR HAS REQUESTED A LIEN WITHIN A ONE–YEAR PERIOD, THE FAILURE TO SEIZE THE DEBTOR’S PROPERTY WITHIN THE SAME ONE-YEAR PERIOD DOES NOT REQUIRE THAT THE RIGHT TO REQUEST A LIEN BE REDUCED AND THE FILE BE REMOVED FROM THE TRANSACTION / REQUESTING THE SEIZURE OF THE DEBTOR’S PROPERTY IS NOT A RENEWAL REQUEST – THE RIGHT TO REQUEST A LIEN IS NOT REDUCED BY REQUESTING A LIEN WITHIN A LEGAL ONE-YEAR PERIOD / NOTIFICATION OF THE RENEWAL ORDER AND RENEWAL FEE IS NOT REQUIRED, BUT A DIRECT LIEN CAN BE REQUESTED)
2004/M.78
SUMMARY : The right to request foreclosure falls one year after the date of notification of the paymentorder. If the creditor does not request a foreclosure within a one-year period or withdraws the foreclosure request and does not request a re-foreclosure within this one-year period, the follow-up file is removed from the transaction. In this case, the follow-up file is removed only from the transaction; otherwise, the enforcement proceedings will not fall. He can request a lien in the same follow-up file by making a renewal request.

If the creditor has requested a lien within a one-year period, the fact that the debtor’s property could not be seized within the same one-year period does not require that the right to request a lien be dropped and therefore the follow-up file be removed from the transaction.In this case, requesting the seizure of the debtor’s property is not in the nature of a renewal request.

Although the creditor’s attorney has requested the seizure of the debtors’ securities and the debtor’s salary within a legal one-year period, the creditor’s right to request a seizure has not been reduced. In this case, in order for the creditor to request a re-lien, there is no need to notify the debtor of the renewal order and therefore to charge a renewal fee, and the creditor may request a direct lien without requesting a renewal.

LAWSUIT: At the end of the trial held due to the request for “cancellation of the civil servant transaction through a complaint” between the parties, the Execution (Civil) Court of Borçka issued a notice of rejection of the complaint on Dec. 10.07.2013 and 2013/2 E., 2013/12 K . upon the request of the deputy of the complainant for the appellate examination of the numbered decision, the Supreme Court of Cassation 12. The date of the Legal Department is 05.12.2013 and 2013/31165 E., 2013/38701 K . with the numbered decision,

“…The payee’s right to request foreclosure shall be revoked one year after the date of notification of the payment order (Article 78/2 of the first.C.1). In this case, the tracking file will be removed from the process (md.78/4) the creditor must submit a renewal request in order to request foreclosure and this request must be notified to the debtor. On the other hand, the same article 5. in the paragraph; It is stipulated that a fee will be charged upon a renewal request for follow-ups that are not based on information.

A concrete case in example 7. Payment order, the first in the history of borrowers 18.9.2009, 30.9.2009 on the second,and the third by the creditor on the date 01.10.2009 bent on 10.3.2010 has been notified and 26.05.2010 in the history of the legal estate of the debtor and the debtor within a year…’s salary being requested the seizure of the creditor “bankruptcy” the right has not fallen. In this case, in order for the creditor to request a foreclosure again, 78/5 of the IIK. according to the article, there is no need to notify the borrower of the renewal order and therefore to charge a renewal fee. In other words, the creditor may request a lien directly without requesting a renewal. IIK’s 110/3. in the article, it is regulated that the creditor is responsible for expenses such as placing and maintaining the lien. Since the mentioned regulation is not related to the renewal fee and the foreclosure request period, there is no place for application in the concrete case.

In that case, it is inappropriate for the court to decide to reject the complaint while it should be accepted …”

at the end of the re-trial, which was disrupted on grounds and turned back to the file instead, the court resisted the previous decision.

The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the papers in the file were read, the necessity was discussed:

DECISION : The request is related to the request for cancellation of the officer’s procedure through a complaint.

The complainant’s representative, the respondent has started enforcement proceedings against debtors in the Executive Office on 11.09.2009 borçka ilamsiz if the payment order had been communicated to all of the debtors that have not been contested within the time determined to follow up debtors about the enforcement operation is performed that many, but for any period specified in the relevant articles of the EBL File No. 2004 foreclosures foreclosures placed with regards to the process of the removal of the decision has been made, and the first file given on 22.04.2013 a petition has been requested renewal of the foreclosure process, on the other hand, it was decided that the application and advance fee should be deposited for renewal, that the process of the Borçka Enforcement Office was unfair and constituted a violation of public order, that the decision titled “Decision Tense Minutes” dated 22.04.2013 issued from the follow-up file numbered 2009/921 of the Borçka Enforcement Office should be canceled and the decision to renew the file without charging a fee was requested by way of complaint.

Subject to trial by a local court the Executive Office of attorney of the creditor’s borçka 2009/921 on 10.03.2010 foreclosures numbered in the following file that is in demand, and the borrowers belonging to Tk and numbered on plate 34 34 498 7400 vehicles have been sequestered 11.04.2010 where ZP, then the creditor you owe the attorney on 26.05.2010…’s salary if asked to foreclosure, distraint without any information and documentation that applies in the file after this date, the creditor’s attorney, file the absence of any demand on, the vehicles were seized according to the date of the sale of the vehicle is not possible until the date 11.04.2011, this demand was not until a vesting date, the date falling on the adoption of the warrant would require, as it fell 11.04.2011 removed from the Proceedings of the warrant until the date 12.12.2012 file date time of the file, since it’s been treated for more than a year removed from any irregularities in the absence of treatment, the renewal of files that were removed from the first 78/5 if requested in accordance with the provisions re-grout retrieved, due to the non-paying of the renewal fee, it was decided to reject the complaint on the grounds that the Execution Office’s procedure for rejecting the renewal request was in accordance with the Law, and the decision was overturned by the Special Chamber on the grounds described in the title section above upon the appeal of the complainant’s attorney.

The court made a decision to resist by repeating the previous grounds.

The decision to resist was appealed by the complainant’s attorney.

The dispute that came before the General Assembly of Law through resistance is subject to Articles 78/2 and 4 of the IIK. the legal requirement in the paragraphs (in case a lien has been requested within one year from the notification of the pay order) is collected at the point of whether the file can be removed from the transaction for other reasons after it has been fulfilled.

As is known, the right of the creditor to request foreclosure is subject to a one-year period. The right to request a lien falls one year after the date of notification of the pay order. (78/2 of the IIK. article C.1) The creditor, the term of one year (78/2 of the IIK. md.) if he does not request a lien within it, or if he withdraws the lien request (which he made within one year) and does not request a lien again within this (same) one-year period, the follow-up file will be removed from the transaction. (78/4 md.) In this case, the follow-up file is only removed from the transaction; otherwise, the enforcement proceedings will not be dropped. In other words, the enforcement proceedings will continue to remain in trouble. In this case, he may request foreclosure in the same follow-up file by requesting renewal. (78/5 md.)

On the other hand, if the creditor has requested a lien within a one-year period, the fact that the debtor’s property has not been seized within the same one-year period (even later) does not require that the right to request a lien be dropped and therefore the follow-up file be removed from the transaction. In this case, the enforcement proceedings remain in trouble, and the creditor’s request to seize the debtor’s property in accordance with the foreclosure request made within a one-year period (after a year has elapsed) is subject to Article 78/5 of the Enforcement and Bankruptcy Code. it is not in the nature of a renewal request in the sense of its article. In other words, in this case, there is no need for the creditor to pay the tuition fee again and to notify the debtor of the request. (Dry B.: Execution and Bankruptcy Law EI Book, 2013, 2. Edition, sh 414, 415).

Example 7 In the concrete case, the payment order was notified to the first debtor on 18.9.2009, to the second on 30.9.2009, to the third on 01.10.2009, and the payee’s attorney requested the seizure of the debtors’ securities and the debtor’s salary within a legal one-year period, but the creditor’s right to request a seizure was not reduced. In this case, in order for the creditor to request a foreclosure again, 78/5 of the IIK. according to the article, there is no need to notify the borrower of the renewal order and therefore to charge a renewal fee. In other words, the creditor may request a lien directly without requesting a renewal.

In this case; While the decision to disrupt the Private Apartment adopted by the local court and the General Assembly of Civil Law should be followed, resisting the previous decision with erroneous grounds is against the procedure and the law.

For this reason, the decision to resist should be overturned.

CONCLUSION : It was unanimously decided on 08.11.2017 that the decision of the complainant’s attorney to resist with the acceptance of the appeals was OVERTURNED due to the reasons indicated in the decision to overturn the Special Chamber, and the refund of the appeal advance fee to the depositor, if requested, with the way to correct the decision being open.

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