REPUBLIC OF TÜRKİYE COURT OF CASSATION 12th Civil Chamber
Basis No: 2017/8109
Decision No: 2017/14735
Date: 28.11.2017
COMPENSATION LAWSUIT – UNTRUTHFUL OBJECTION TO A GARNISHMENT NOTICE – LACK OF AN EXISTING DEBT OWNED BY THE DEBTOR HELD BY THIRD PARTIES AT THE TIME OF OBJECTION – VALIDITY OF THE OBJECTION – NECESSITY TO DISMISS THE CASE
SUMMARY: As of the date of the objection to the served garnishment notice, the debtor had no finalized (accrued) receivable from the third parties. At the time of the objection, the lawsuit filed for the retroactive cancellation (geriye etkili fesih) of the construction agreement in return for land share and the additional agreement was still pending (derdest). Therefore, the objection made by the third parties was not unjust at that time. Since it could not be determined that the debtor had a finalized receivable from the third parties at the time of the objection to the garnishment notice, the court should have dismissed the case. Establishing a judgment for the acceptance of the case with written reasoning was improper. (Execution and Bankruptcy Law [EBL] Art. 68, 89)
J U D G M E N T
The creditor claimed that the objection made by the defendant (the third party) against the garnishment notice sent pursuant to Article 89/1 of the EBL was untruthful and requested compensation pursuant to Article 89/4 of the EBL. The local court accepted the case and awarded 72,350.00 TL in compensation, reasoning that the debtor held a receivable from the defendants due to manufacturing costs.
Article 89/4 of the EBL stipulates: “If the third party objects to the garnishment notice within the prescribed period, the creditor may request the third party to be punished according to Article 338/1 and also be sentenced to pay compensation by proving the contrary of the third party’s answer in the execution court. The execution court shall resolve the lawsuit regarding compensation according to general provisions.” The subject of this compensation is the loss suffered by the execution creditor due to the third party’s untruthful statement. The burden of proof lies with the plaintiff creditor.
In the concrete case: The defendant third parties objected to the garnishment notice on 13.03.2009, stating that the debtor (the contractor) had defaulted on the construction agreement in return for land share and that a lawsuit for the retroactive cancellation of the contracts was pending. An additional agreement provided that if the construction was not completed by 15.06.2007, the contractor would forfeit all rights and claims. The Civil Court of First Instance eventually ruled for the retroactive cancellation of these contracts, and this decision became final on 02.05.2013.
For a court to award compensation under Article 89/4, the creditor must prove that the objection to the garnishment notice was unjust. The debtor must have a materially demandable receivable from the third party as of the date the notice was served. The liability of the third party is limited to the actual factual situation at the time the notice reached them.
As of the objection date, the debtor had no accrued receivable from the third parties because the cancellation lawsuit was still pending. Therefore, the third parties’ objection was not unjust. Since no finalized receivable existed at the time of the objection, the local court’s decision to accept the case was erroneous and required a reversal.
CONCLUSION: It was UNANIMOUSLY DECIDED on 28.11.2017 to REVERSE (BOZULMASINA) the judgment pursuant to Article 366 of the EBL and Article 428 of the CCP.