Article 89/4 of the Enforcement and Bankruptcy Law states that; “If a third party objects to the seizure notice within the prescribed period, the creditor may prove the contrary of the third party’s response in the enforcement court and request that the third party be punished according to the provisions of Article 338, paragraph 1, and also ordered to pay compensation.
Punishment for making statements contrary to the truth:
Article 338 – (Amended: 31/5/2005 – 5358/9 art.) Anyone who makes a statement contrary to the truth, as required by this Law, shall be punished, upon the complaint of the creditor, with imprisonment from three months to one year…
12th Civil Chamber, 2016/12789 E., 2016/17553 K.
“Case Law Text”
COURT: Enforcement Law Court
Appeal against the court decision dated and numbered above within the prescribed period Upon the request of the defendant-third party for examination, the file related to this matter was sent from the local court to the appellate court. After hearing the report prepared by the Examining Judge … for the case file and reading and examining all the documents in the file, the matter was discussed and considered as follows:
While other appeals are unfounded;
Article 89/4 of the Enforcement and Bankruptcy Law states: “If a third party objects to the seizure notice within the prescribed period, the creditor may prove the contrary of the third party’s answer in the enforcement court and request that the third party be punished according to the provisions of Article 338, paragraph 1, and also be ordered to pay compensation.” The law states that “the enforcement court shall handle the compensation case according to general provisions.” The subject of the compensation mentioned in the law is the damage suffered by the creditor due to the third party making a false statement in response to the seizure notice. In this case, the plaintiff creditor must prove that the third party made a false statement. The contrary of the third party’s statement can be proven by any kind of evidence, regardless of the documents listed in Article 68 of the Enforcement and Bankruptcy Law. As per the clear provision of the said article, the enforcement court should reach a conclusion by conducting the trial according to general provisions.
The creditor’s application to the enforcement court is a compensation case based on Article 89/4 of the Enforcement and Bankruptcy Law. According to Article 89/4 of the Enforcement and Bankruptcy Law, the enforcement court examines the compensation case according to general provisions. Accordingly, the amount of compensation requested and the value of the claim must be indicated in the petition, and the plaintiff must pay the proportional fee accordingly.
In the concrete case, it has been understood that the amount of compensation requested and the value of the claim were not indicated in the petition, and a fixed fee was paid. In this case, first of all, the Code of Civil Procedure… Article 31 stipulates that the court should have clarified the amount of compensation requested by the plaintiff creditor and completed the missing court fees before proceeding with the proceedings within the framework of general provisions. However, the court’s decision was rendered in writing with an incomplete examination, ignoring these matters, and is therefore incorrect.
CONCLUSION: The appeal of the defendant-third party is partially accepted, and the court’s decision is REVERSED for the reasons stated in paragraph (2) above, in accordance with Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure. The other appeals are not to be examined at this stage due to the reasons for reversal. The advance court fee shall be refunded upon request. The right to request a correction of the decision is open within 10 days from the date of notification of the judgment. The decision was made unanimously on 22/06/2016.
12th Civil Chamber, 2014/25694 E., 2015/1137 K.
“Case Law Text”
COURT: Enforcement Law Court
Upon the creditor’s request for appellate review of the court decision dated and numbered above, the file related to this matter was sent from the local court to the appellate court. After hearing the report prepared by the Examining Judge ….. and reading and examining all the documents in the file, the matter was considered and deliberated upon as follows:
Article 89/4 of the Enforcement and Bankruptcy Law states: “If a third party objects to the seizure notice within the prescribed period, the creditor may prove the contrary of the third party’s answer in the enforcement court and request that the third party be punished according to the provisions of Article 338, paragraph 1, and also be ordered to pay compensation.” The regulation states that “the enforcement court shall handle the case regarding compensation according to general provisions.” Accordingly, the creditor who claims compensation can prove the contrary of the third party’s statement with any kind of evidence, without being bound by the documents listed in Article 68 of the Enforcement and Bankruptcy Law.
In the concrete case, a seizure notice under Article 89/1 was served on the third party, and the third party company objected to the seizure notice within the legal period. Upon the creditor’s application to the enforcement court under the conditions of Article 89/4 of the Enforcement and Bankruptcy Law, the court decided to dismiss the case on the grounds that an expert examination could not be carried out because the debtor and the third party company did not bring their commercial books.
According to the clear provision of Article 89/4 of the Enforcement and Bankruptcy Law, the court should collect the evidence presented by the parties, and if necessary, conduct an expert examination on the records of the third party company to determine whether the debtor has a claim against the third party, and then make a decision according to the resulting outcome.
Although the court dismissed the compensation claim filed by the creditor on the grounds that the debtor and the third party did not submit their commercial books despite being served with a formal summons, there is no such summons in the file, and even if such a situation existed, the court’s decision to dismiss the case by reversing the burden of proof is incorrect. However, since the case concerns a claim for compensation based on Article 89/4 of the Enforcement and Bankruptcy Law and will be decided according to general provisions, a proportional court fee should be paid based on the value of the claim. In this case, the court should first have the missing court fee completed, then proceed to the merits of the case, duly giving the third party a definitive deadline to submit the commercial books and records, and if the books and records are submitted, conduct an expert examination to determine whether the debtor had a claim against the third party as of the date the 89/1 attachment notice was served, and then render a decision based on the resulting outcome. The court’s decision to dismiss the claim by reversing the burden of proof through an incomplete examination is therefore incorrect. CONCLUSION: The creditor’s appeal is accepted, and the court decision is REVERSED for the reasons stated above, in accordance with Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure. The advance payment of court fees shall be refunded upon request. The right to request a correction of the decision is open within 10 days of the notification of the judgment. The decision was made unanimously on January 20, 2015.
(Note: The final decision is a separate, unrelated sentence and not directly related to the court decision.) 12th Civil Chamber, Case No. 2014/24769 E., Decision No. 2014/23120 K.
“Case Law Text”
COURT: Istanbul 5th Enforcement Criminal Court
DATE: 13/10/2009
NUMBER: 2008/1979-2009/905
Upon the creditor’s request for appellate review of the court decision dated and numbered above, the file related to this matter was sent from the local court to the chamber. After hearing the report prepared by the Examining Judge … and reading and examining all the documents in the file, the matter was considered and deliberated upon:
Article 89/4 of the Enforcement and Bankruptcy Law; The regulation states: “If a third party objects to the attachment notice within the prescribed period, the creditor may prove the contrary of the third party’s response in the enforcement court and request that the third party be punished according to Article 338, paragraph 1, and also ordered to pay compensation. The enforcement court shall handle the compensation claim according to general provisions.” Accordingly, the creditor seeking compensation can prove the contrary of the third party’s statement with any evidence, without being bound by the documents listed in Article 68 of the Enforcement and Bankruptcy Law. In the concrete case, an attachment notice under Article 89/1 was served on the third party, and the third party company’s representative objected to the attachment notice within the legal period with a petition stating, “…the debtors have no rights or claims against our company…” The creditor’s application to the enforcement court under Article 89/4 of the Enforcement and Bankruptcy Law was rejected by the court on the grounds that the debtor’s claim against a third party was based on a negotiable instrument and that the third-party company could not be held liable for compensation due to the statement of its representative. According to the clear provision of Article 89/4 of the Turkish Enforcement and Bankruptcy Law, after collecting the documents and evidence presented by the parties, the court may, if necessary, have an expert examination conducted on the commercial books and records of the third-party company to determine whether there is a written current account agreement between the debtor and the third party, whether the current account agreement has expired and whether there is a payable account balance, and whether the bill of exchange has been recorded in the current account in accordance with Article 88/3 of the Turkish Commercial Code and Article 90/c of the Turkish Commercial Code No. 6102. The court will also examine the enforcement files numbered 2007/4246 of the Bakırköy 2nd Enforcement Office and 2007/4217 of the Bakırköy 4th Enforcement Office to determine whether the debtor has an existing and due receivable from the third party as of May 25, 2007, the date of notification of the first attachment notice. According to the law, a decision should be made based on the outcome after determining whether the objection of the third party is valid. Although an expert report was obtained by the court to take action on this matter, only the relevant pages of the commercial books belonging to the third party were examined and a conclusion was reached. Therefore, it is incorrect to render a judgment based on an incomplete examination and with a written justification that does not correspond to the specific dispute, without giving the third party a definite deadline and ensuring the submission of all commercial books and records when necessary. On the other hand, according to Article 297, paragraph (1), subparagraph (e) of the Code of Civil Procedure, it is mandatory to include “the date on which the reasoned decision was written” in the judgment, and acting contrary to this mandatory provision of the law is also incorrect.
CONCLUSION: The creditor’s appeal is accepted, and the court decision is REVERSED for the reasons stated above, in accordance with Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure. The advance payment of court fees shall be refunded upon request. The right to request a correction of the decision is open within 10 days of the notification of the judgment. This decision was made unanimously on October 2, 2014.