Non-Distrainable Goods and Non-Seizability Complaint

The purpose of executive proceedings is to ensure that the debtor who has not paid the debt pays the creditor. If the debtor does not fulfill the requirement of the payment order (or executive order) sent to him and does not pay the creditor within the time limit, the debtor’s property is sequestrated upon the fulfillment of certain conditions and at the request of the creditor. The sequestrated goods are converted into money and the creditor’s right to receivables is paid at the sale price.

As a result of executive proceedings, since the debtor’s goods are intended to be sold and paid to the creditor from the sale price, the debtor’s goods and rights that have only material value are sequestrated. However, the sequestration of every property of the debtor with financial value is also not considered permissible in our law. This situation is based on various legal, social or humanitarian grounds.

In this bulletin, which are the goods and rights that are forbidden to be sequestrated and which are not sequestrated, although they are goods that cannot be sequestrated, if a sequestration is made by the bailiff, the non-seizability complaint will be the subject of review.

1. What are the Goods and Rights that Cannot be Sequestrated?

Some of the goods and rights that cannot be sequestrated are goods and rights that cannot be transferred under substantive law. It is also not possible to sequestrate them because they cannot be sold. For example, a claim for non-pecuniary damages, the right to residence and other personal rights cannot be sequestrated.

There are goods and rights that are stipulated in the laws that cannot be fully or partially confiscated. The sequestration of these goods and rights is prohibited, and despite this, the debtor can exercise his right to complain if he is sequestrated.

The bailiff becomes decisive during the sequestration as to which goods and rights cannot be sequestrated. In this regard, the bailiff also takes into account the statements of the parties. The bailiff makes his decision on this issue on a reasoned basis.

1.1. Goods and Rights That Cannot Be Completely Sequestrated

In the article 82 of the Bankruptcy and Enforcement Law, which goods cannot be confiscated are listed as follows;

• State goods and goods that have been shown that private laws are also not permissible for sequestration cannot be sequestrated.

 

• Excludingprecious things such as money, precious documents, gold, silver, precious stones, antiques or ornaments necessary items for debtors and family members living under the same roof; if there is more than one item used for the same purpose, one of them cannot be confiscated.

 

It is not possible to sequestrate the necessary items belonging to the debtor and his family during the sequestration of the house.  Here it is necessary to determine the necessary items in accordance with today’s conditions and to determine the necessary items for the management of a house in such a way as to allow a person to live and work with dignity and within the framework of human rights.

 

• All kinds of goods necessary for the debtor to maintain his profession, whose economic activity is based on the work of his body rather than on his capital, cannot be confiscated. For example, it is not possible to confiscate the tailor’s sewing machine. This situation is capable of destroying the economic future of the debtor. However, the purpose of enforcement proceedings and sequestration is not to deprive the debtor of all his vital means and livelihoods. On the contrary, the borrower should be encouraged to lead a life in accordance with human dignity and become able to pay his debt by working.

 

• In case the debtor is a farmer, he and his family must have land and farm animals that are mandatory for his livelihood, as well as transport vehicles and other attachments and agricultural tools; if not, tools and literature and books that are necessary for art and professional, as well as transport vehicles that provide the livelihood of small transport supplies such as a coachman, boatman, porter, cannot be confiscated.

 

It should be noted here that it is possible to sequestrate the land belonging to the debtor who has lost the right to become an agricultural landowner, on which a building has been built.

• The food and fuel of the debtor and his family for two months, as well as the seed needed for the next crop if the debtor is a farmer, cannot be confiscated.

 

• If the debtor is a vineyard, garden or fruit or vegetable grower, the vineyard that is mandatory for the livelihood of him and his family, the garden and the tools and ornaments that are necessary for this art cannot be sequestrated.

 

• If it is necessary for the debtor and his family’s administrations a dairy buffalo or cow that the debtor will prefer, or three goats or sheep, and their quarterly feed and bedding can’t be confiscated.

 

• The amount that is mandatory for the livelihood of the debtor himself and his family, whose livelihood is exclusive of raising animals, and the quarterly feed and bedding of these animals cannot be sequestrated.

 

• Pensions linked to those who are disabled in the army and police services of the country due to the performance of one of these services with salaries that are tied to their families and flight and diving compensation and bonuses given to air and submarine members of the army cannot be confiscated.

 

• Salaries that are put onby a charity fund or society in cases such as illness, necessity and death can not be confiscated.

 

• In accordance with the article 610 of the Code of Obligations lifetime income contracts established in order not to be sequestrated cannot be confiscated.

 

• The promotion granted to orphans of martyrs, military veterans and the shares granted to monopoly premium shares accordance with the provision of law No. 1485 cannot be confiscated.

 

• For damage to the body or healthcompensation as for the money given to the one that suffers loss or their family in the form of a lump sum or an income that must be given or, cannot be sequestrated.

 

It should be understood from this article that claims for pecuniary and non-pecuniary compensation that will have to be paid to a person or his relatives for compensation for damage to the integrity of the body are entered.

• The house corresponding to the debtor’s condition cannot be sequestrated.

Detailed explanations on the subject are examined below under the heading “Residence Complaint”.

 

• Student scholarships cannot be confiscated.

 

In addition to these goods and rights listed in the Enforcement and Bankruptcy Code, there are goods and rights that cannot be sequestrated in other special laws. Some of them; alimony debt secured by a court judgment, letters of guarantee, pets, contact numbers cannot be confiscated.

1.2. Goods and Rights That Cannot be Partly Confiscated

All salaries and wages cannot be confiscated. Only a part of them can be sequestrated. In order not to deprive the debtor of all livelihoods, cut backs can be made from only a part of salaries and wages. The portion of the salary to be confiscated cannot be less than a quarter. As for workers’ wages, no more than a quarter of the salary can be confiscated. In case of further sequestration, the debtor has the right to complain.

In addition to salaries and wages, usufruct rights and income, alimony not secured by the court judgement, pensions, insurance or pension funds allocated by only a part of the income can be foreclosed. The bailiff appreciates the part of them that is necessary for the livelihood of the debtor and his family, and after separating this part, he can put a lien on the rest.

2. Complaint of Non-Seizability

The bailiff is authorized to decide which goods can and cannot be sequestrated on during the sequestration. He has been given discretion in this regard. If the bailiff has not exercised his discretion in accordance with the law and the concrete case, a complaint may be filed against the sequestration process of the bailiff. The reasons for the complaint may be a violation of the law or an incident. For example, if the bailiff sequestrates the sequestration of a property provided for in the Law that cannot be fully sequestrated, the cause of the complaint will be a violation of the law. However, if the bailiff, who determines within the framework of his discretion which amount of the property, part of which cannot be sequestrated, has made a sequestration that is not appropriate to the debtor’s situation, the right to complain may be used due to a violation of the incident. In the following Supreme Court decision, evaluations were made regarding the limits of the bailiff’s discretion;

“In accordance with the article 85/1 of the Enforcement and Bankruptcy Law, by the enforcement office, the debtor or their marketable goods real estate in their own place or in the third person and the rights and receivables of the creditors including the principal amount, interest and costs, a sufficient amount of all receivables are sequestrated (ACC date 10/06/2009, 12-213/244 decision). The common conclusion from the articles 85 and 79 of the Enforcement and Bankruptcy Law is that the bailiff is not given the discretion to implement the sequestration. Article 85 of the Enforcement and Bankruptcy Law gives the bailiff the right of discretion only in determining the “amount sufficient for receivables”.
Accordingly; as a rule, the bailiff’s confiscation is necessary to recognize that there is no discretion in fulfilling his request. However, although this is the rule, the 82nd Edition of the Enforcement and Bankruptcy Law according to Article 16 of the Law No. 6352 of 02/07/2012. and in the last paragraph added by Article; “bailiff, sequestration, or seizure of the rights requested goods and evaluates whether it is lawful to decides on the acceptance or rejection of the request” provision in the face of discretion afforded to the executive officer, seizure or attachment of goods is requested regarding whether it is permissible applied in a concrete case of Rights has no place.

In the light of the explanations made above, the enforcement directorate, at the request of the creditor, upon the assets belonging to the debtor, has to confiscate  However, the debtor can apply to the executive court with non-seizability complaint.

In that case, the court should decide on the cancellation of the decision of the enforcement directorate on the issue by accepting the complaint with a written justification, while it is incorrect to make a decision on a written justification also, as a result, the complaint was accepted, and the District Court rejected the debtor’s request for appeal on the merits, as a result of which the correct decision of the Regional Court of Justice had to be upheld.” [1]

The bailiff, while exercising his discretion, also takes into account the statements of the parties. If the bailiff sequestrates a property that the debtor declares cannot be sequestrated on, the debtor may apply for a complaint against the sequestration decision of the bailiff.

An application for a complaint is filed with the enforcement court.

In order to resort to the complaint, first of all, there must be a valid sequestration process present. The following Supreme Court decision relates to the fact that the existence of a valid sequestration for a non-seizability complaint should be investigated;

“In order to file a non-seizability complaint, based on the article 82/1-12 of Enforcement and Bankruptcy Law, as of the date of complaint, the existence of a legally valid sequestration is a must. Therefore, when the borrower files a non-seizability complaint, it is first necessary to determine whether there is a valid lien placed on the immovable property subject to the complaint from the enforcement follow-up file. If it is determined that there is no valid lien placed on the property from the relevant enforcement tracking file, it should be accepted that the application has been filed in vain, as it will not be the subject of a complaint.

On the other hand, in order to recognize that the real estate has been duly sequestrated, it is sufficient to issue a sequestration decision by the executive directorate, and it is not mandatory to also submit an annotation to the land registry in order for the sequestration to be considered valid and completed. Article 1010 of the Turkish Commercial Code, which stipulates that restrictions on savings authority related to this issue can be commented on in the land registry is not of a mandatory nature, and a lien is issued in accordance with the last paragraph of the same article, it can be argued against the owners of the rights acquired later on the immovable property. Its processing in the title deed is not a constituent element of the sequestration, but has a declaratory nature. However, in order to be brought forward against the third parties, the sequestration must be processed in the land registry.
In a concrete case, when examining the enforcement file, it is seen that there is no sequestration decision issued by the enforcement directorate regarding the real estate subject to the complaint, and there is no lien written to the land registry office for the foreclosure of this real estate from the enforcement file. As a matter of fact, the response of the executive directorate dated 19/04/2021 is also in the article “…. 4562 lot 5 parcel No. A block Ground Floor No. 2 The directorate of real estate registered in the independent section of the island has not found a foreclosure in the examination of the land registry, …in the examination, regarding the mentioned real estate, the mortgage written in the title deed and the foreclosure of the directorate were not found in the land registry,” it was seen that the answer was given.
In this case, since there is no legally valid lien on the real estate subject to the complaint as of the date of the complaint, which was placed from the enforcement follow-up file, there is no legal benefit worth protecting in the debtor’s complaint of non-seizability.”[2]

3. Duration of Complaint

If the property specified in the law that cannot be sequestrated has been sequestrated, the debtor can file a non-seizability complaint within seven days. This period starts from the date of learning about the sequestration. However, in some cases, the filing of a complaint does not depend on the time period; you can always resort to complaint. Complaints are indefinite, especially if there are violations of the law related to public order. For example, it can be argued through an indefinite complaint that the property of the state and other public legal entities cannot be confiscated.

If the basic necessities such as clothing, food, firewood, which are mandatory for the livelihood and administration of the debtor and his family, are confiscated, the complaint is also indefinite.

A new complaint right of the debtor arises about each sequestration placed. According to the decision of the Supreme Court;

“The non-seizability complaint contained in article 82 of the Enforcement and Bankruptcy Law. in accordance with the article16/1, it is subject to a 7-day period. This period starts from the date of learning.

On the other hand, there is no such institution as renewal of the lien placed on the real estate in the Enforcement and Bankruptcy Code, and every lien placed, even from the same follow-up file, is a new lien, and the debtor has the right to complain about each lien.

In a concrete case, finally, upon registration of real estate, at the request of the creditor’s deputy, a lien comment was processed on 27.8.2019, the debtor was notified of the valuation report from the enforcement file on 07.10.2019, and the debtor filed a residence complaint during the period on 14.10.2019.

In that case, although there is a lien placed on the real estate before, as explained above, each lien will lead to a new right of complaint, the debtor’s complaint against the lien dated 27.08.2019, is the legal period stipulated in the article 16/1 of the Enforcement and Bankruptcy Law. In that case, while the court of first instance should decide according to the result that will be formed by examining the merits of the work, the provision in written form is incorrect and required to be overturned.” [3]

4. Complaints about the Place of Residence

In the event that the bailiff sequestrates the debtor’s house, the complaint that is raised is called a residence complaint in practice. As stated above, the house corresponding to the debtor’s condition cannot be sequestrated. In other words, a lien cannot be placed on the debtor’s home that is suitable for his social and economic situation.

According to the social and economic situation of the debtor, the bailiff will evaluate whether the house is a suitable house for the debtor. If the value of the debtor’s house is found to be too high by the bailiff, the house is sold and the debtor is given the necessary price to buy a suitable house from within this price. The rest is paid to the creditor.

In order for the debtor to file a residence complaint, he does not have to be living in that house. Even if the debtor rents his own house and lives in another house, he can file a residence complaint about this house. It is also not necessary that the construction of the house that has been put forward as a residence is completed and it is a habitable house. It is also possible to file a residence complaint for the house under construction. In addition, if the debtor has a summer residence other than his house where he lives in winter, it is possible to file a residence complaint for this house.

The debtor cannot claim residence on the house on which he has previously established a mortgage. However, if this mortgage is a type of compulsory mortgage, a residence complaint can still be filed. The following are a few of the decisions from the case law of the Supreme Court that can be an example of the subject;

“In order for the debtor to subsequently file a non-seizability complaint about the real estate that he has previously mortgaged, the mortgage must be one of the mandatory established mortgages, such as residential loan, artisan loan, agricultural loan. Because the principle that a compulsorily established mortgage will not be an obstacle to a residence complaint arises from the fact that this mortgage is a guarantee of a loan issued for social purposes. In addition, mortgages established by the debtor of his own free will prevent the named person from later claiming residence in relation to this place. However, if the debt subject to the mortgage has been paid as of the date of sequestration, a residence complaint may be made about the real estate that is not liable for the mortgage.

In the concrete case, it can be seen that, … province …district 1497 lot 266 parcel No. 1497 is registered in the name of the complainant debtor, dated 27.4.2006 on the real estate there is a mortgage established in favor of S.S. Güzelyalı Konut Yapı Koop., the mortgage was established by the former owner of the real estate, and the real estate was purchased by the complainant on 26.8.2010 loaded with a mortgage, the real estate was sequestrated on 27.4.2018.

Of course, there will be no difference between the cause and effect relationship between this mortgage and the mortgage that he has established himself, and Regional Court of Justice’s justification to the contrary has not been found correct, and it is not appropriate to conclude that the mortgage is for social purposes with an examination conducted only on the land registry without bringing a mortgage certificate by the Court of First Instance.
In that case, the court of appeal to file several mortgage deed during the intermediate stage by examining the nature of the mortgage in the evaluation of transport properties as mandatory if it is to be understood that the mortgages as of the date established from the mortgage lien is not subject to the debt has been paid and where complaints can be made if determined whether residence been paid for, unpaid work by assessing that claim would be prevented from residence should be decided according to the result will occur while the facility is in written form with the review of missing provision is inexact.”[4]

 

In another decision, the Supreme Court examined the effect of a mortgage loan on a residence complaint;

“In a concrete case, a lien was applied on the real estate subject to the complaint of the debtor from the follow-up file on 21.01.2019, in the title register of the real estate before the foreclosure date in favour of 3. person… Inc. as per all kinds of loan contracts and commitments etc. or as per the deposited/to be deposited bails to the bank by third parties as related to the debtor, upon all kinds of credit opened/ to be opened by the bank, all credit debts to the bank acting as principle or agent and as interest,commision, charge, tax etc. assurance dated 29.01.2014 first degree mortgage is established and the creditor of the mortgage…. in the answer to the article dated 13.02.2020, it was noted that the mortgage debt was reported to be continuing.
Although by the District Court of Justice it has been evaluated that the mortgage was established due to a mortgage loan and is one of the mandatory mortgages, when the official mortgage deed was examined, it was understood that the mortgage was not specific to the mortgage, and the mortgage was not one of the mandatory mortgages in this state.
In that case, it is understood that there is a non-mandatory mortgage on the real estate subject to the complaint that was established before the foreclosure and whose debt is not paid due to the mortgage as of the date of foreclosure, but the borrower will be deemed to have abandoned the residence complaint by the court of first instance, while the complaint must be rejected for the reason mentioned, the provision in writing is incorrect. [5]

 

The following determinations were made in the Supreme Court decision on the cases that the bailiff should observe and the examination that he should do when conducting the appropriate house inspection;

“According to the article 82/1-12 of Enforcement and Bankruptcy Law, the debtor’s “appropriate” house cannot be sequestrated. The suitability of a residence for the debtor is determined according to the social status of the said person at the time of sequestration and the needs of the debtor and his family. The term “family” here is in a broad sense and includes dependents who live under the same roof with the debtor. By the enforcement court, after the price is determined by the experts for the procurement of proper residence for the debtor’s mandatory situation to inhabit alongside those who are mentioned, if the value of the residence is more than that, it should be determined to be sold and the price of the residence that is qualified above the sales price should be left to the debtor and the rest must be paid to the creditor.

In the concrete case, according to the expert report organized after the discovery made by the instruction, the value of the real estate at the sequestration date is 188.519,00 TL and the plaintiff can buy an apartment corresponding to his social status at the time of foreclosure for 200.000TL, it is understood that the value of the real estate at the sequestration is lower than the amount that he can buy a house corresponding to his social status at the time of sequestration.
In that case, the court should have decided to remove the lien on the real estate with the acceptance of the debtor’s complaint, while the rejection of the appeal application by the Regional Court of Justice in writing was incorrect and the decision had to be overturned.”[6]

Conclusion

As a rule, any property and rights of the debtor that have a material value can be confiscated, while exceptions to this are provided for in the Law. Due to these exceptions, some of the debtor’s property and rights cannot be at all, while some of them cannot be sequestrated. In violation of these exceptions provided for in the law, liens made by the bailiff will be considered as transcendental liens, and a complaint may be filed against these lien decisions and the lien may be requested to be removed. The complaint is subject to a period of time, and it is recommended to seek help from an expert lawyer about which goods and rights or what amounts of them cannot be legally confiscated in this regard. In particular, the issue of residence complaints is complicated, and the fact that the house is mortgaged and the type of mortgage may change the situation. It is useful to get legal support before taking any steps.

You can contact Solmaz Legal and Consulting team for your legal questions and problems related to the subject.

Best regards.

References

KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, p.186-193.

PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, p.200-209..

12thCivil Chamber  of the Supreme Court, 2021/422 E., 2021/5042 K.

12th Civil Chamber of the Supreme Court, 2020/8905 E., 2021/5030 K.

12th Civil Chamber of the Supreme Court, 2021/2301 E., 2021/6764 K.

12th Civil Chamber of the Supreme Court, 2021/2258 E., 2021/6529 K.

12th Civil Chamber of the Supreme Court, 2021/1887 E., 2021/6264 K.

12th Civil Chamber of the Supreme Court, 2021/1349 E., 2021/5859 K.

Enforcement and Bankruptcy Law.

[1]12th Civil Chamber  of the Supreme Court, 2021/422 E., 2021/5042 K.

[2] 12th Civil Chamber of the Supreme Court, 2020/8905 E., 2021/5030 K.

[3] 12th Civil Chamber of the Supreme Court, 2021/2301 E., 2021/6764 K.

[4] 12th Civil Chamber of the Supreme Court, 2021/2258 E., 2021/6529 K.

[5] 12th Civil Chamber of the Supreme Court, 2021/1887 E., 2021/6264 K.

[6] 12th Civil Chamber of the Supreme Court, 2021/1349 E., 2021/5859 K.