he New Procedure For Attachment In The Residence And the Regulation on Excessive Attachment Entered Into Force. 06 April 2023
On 05.04.2023, the Law on the Amendment of the Execution and Bankruptcy Law and Certain Laws entered into force after being published in the Official Gazette, and an article titled "Attachment in the Residence" was added to the Execution and Bankruptcy Law and it was regulated that attachment cannot be made in dwellings without a judge's decision.
Pursuant to the aforementioned regulation, if the execution director determines that the place where the attachment is requested is a residence, he/she will decide on the attachment and will immediately submit the decision for the approval of the execution court.
The court will examine the file within 3 days at the latest from the date of submission of the file, and as a result of the examination, if it is understood that the place where the attachment is requested is a residence, it will definitely decide to approve the decision and the attachment procedures will be carried out upon notification of this decision to the enforcement office.
If, as a result of the examination, it is understood that the place where the attachment is requested is not a residence, the court will definitively lift the decision on the attachment of the residence. Upon notification of this decision to the enforcement office, the enforcement director will make a new decision on the existing attachment request.
If it is understood that the place of attachment is not a residence after the court has issued an approval decision, the attachment will continue. However, if it is understood that this place is a residence during the attachment process carried out upon the attachment decision issued regarding a place that is accepted not to be a residence, and the debtor does not consent to the attachment, the attachment process will be terminated.
However, since the precautionary attachment is exempted under this provision, this regulation will not be applicable to the precautionary attachment.
Likewise, this provision shall not apply to the decisions regarding the attachment of the residence and the seized goods issued before the effective date of the regulation.
The phrase "necessary goods for the individuals; in case there is more than one of the goods used for the same purpose, one of them" in Law numbered 2004 has been amended as "personal belongings belonging to the individuals and all household goods that serve the common use of the family", and the said regulation prohibits the attachment of personal belongings belonging to family members living under the same residence with the debtor and all household goods. As a matter of fact, although this situation has limited the creditor's ability to collect, it has eliminated the confusion created by the concept of necessary household goods in the text of the previous law and clearly defined the limits of the attachment to be carried out in the residence. However, it is important to note that this regulation does not prevent the attachment and preservation of money, negotiable instruments, antiques, gold or precious metals if they are found in the residence.
Another important innovation brought by the 7th Judicial Package is the "Excessive Attachment'' is clearly regulated and included in the Law. In addition, it is also regulated that the attachment cannot be made in an amount exceeding the amount sufficient for the interest and other accessories to the receivable subject to enforcement proceedings. Although there is no explicit regulation in the law in the process until today; the issue of excessive attachment was discussed both in the doctrine and in the decisions of the Court of Cassation within the scope of Article 85 of the EBL, and there was no unity of opinion and jurisprudence on this issue. As a matter of fact, even though the Legislator has clearly expressed its will on this issue with the latest regulation, the problems that may constitute an exception to the lien will be solved with the increase in the variety of Supreme Court decisions.
Another issue regulated under the Law that has entered into force is the procedures and principles regarding the liquidation of the goods in the trustee's custody where the attachment, which is the basis of the preserve procedure, has been lifted. Pursuant to the regulation, the goods in the trustee's custody where the attachment, which is the basis of the preserve procedure, has been lifted, will have to be liquidated ex officio by the enforcement office where the proceedings are carried out. It is regulated that the information regarding the goods to be liquidated will be announced by the enforcement office in the National Judicial Network Information System and the liquidation costs will be covered primarily from the advance in the file, and in the absence of an advance, from the budget of the Ministry of Justice. In the event that the amount paid to the file cannot cover the costs incurred from the budget of the Ministry of Justice, the enforcement office will notify the collection office for the collection of the remaining costs from the debtor.
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