T.C
SUPREME
11.law office
MAINLY NO:2016/9590
DECISION NO:2513
DATE OF DECISION: 09.04.2018
THE PENSION CANNOT BE BLOCKED BECAUSE OF THE DEBT THAT THE PENSIONER IS GUARANTEEING.
In cases rendered by the court of Artvin 2016/28 between the parties and date 13/04/2016-examination by the plaintiff’s attorney filed the petition and appeal of Decision No. 2016/335 yargitayca that is given within the period of being understood, with the audit report to file a claim rested for roses smoke Pekcan organized by the judge, and again within the file petitions, pleadings, and trial proceedings and all documents are read and analyzed, after the nature of the business is discussed, considered:
The deputy plaintiff stated that his client’s salary was paid to the Artvin Branch of the defendant bank, his wife S. G.artvin Executive Directorate initiated enforcement proceedings against his wife and client on the non-payment of the defendant bank’s loan debt through the execution tracking file No. 6 of 2014 / …, 1/4 of his salary was cut to this file, the remaining 3/4 was re-blocked by the defendant bank, it is not known what amount was re-collected from his salary by the defendant bank by this time, stating that this deduction made by the defendant bank is unfair and unlawful, without prejudice to the rights and unfair salary which is cut on the surplus of attachment 1.000,00 TL with interest from the date of collection to process the case and requested that be decided to remove the block from the defendant on account of salary.
The defendant’s representative, the execution of the client from the file specified in the petition made to the bank if there is a deduction, the deduction is made, the Executive Directorate of the file Artvin 2009/No. 2 instruction file is…from this file after this date and until 2012 that have been cut upon the termination of any debt deduction was not made correctly, the person or institution who is a creditor of the plaintiff did not report to the court if the plaintiff signed with the client, the bank is the guarantor of the general cash and non-cash loan agreement in accordance with, the client understands that the bank has the right to exchange and offset, that is, it can deduct the money deposited in the borrower’s account from the loan debt in exchange for the receivable, that the plaintiff also has a signature in this agreement, that the contract is of a commercial nature, that his client is in accordance with article 67 of this agreement. he asked for the dismissal of the case, arguing that he had made the deduction in question for the purpose of collecting the debt in accordance with the article, and that the case lacked legal basis.
According to the scope of the entire file filed by the court, the loan agreement signed by the plaintiff as a joint debtor fiduciary guarantor is a commercial loan, the contract is 67. in the article, it was decided to dismiss the case on the grounds that the pledge and offset right of the defendant bank was regulated and that the defendant bank would not want to refund the deductions it had made in this context.
The decision was appealed by the acting plaintiff.
The case concerns the cancellation of the deduction made by the defendant bank from the plaintiff’s guarantor’s salary account, and as a result of the trial by the court, the loan agreement signed by the plaintiff as a joint debtor fiduciary guarantor is a commercial loan, and the contract is 67. in the article, it was decided to dismiss the case on the grounds that there was no violation of the law in making this deduction by the bank due to the fact that the pledge and offset right of the defendant bank was regulated.
However, upon non-payment of the loan debt by the plaintiff, the defendant is obliged by the bank to terminate Article 67 of the contract. article 93 of the Law No. 5510 on blocking the plaintiff’s pension by the authority granted by the article. according to article I.I.K.83rd. although the agreement with the creditor that it is not possible in accordance with the article, it is not possible to foreclose on a property that is not subject to foreclosure in the period preceding the foreclosure is not valid, and there is no foreclosure on the plaintiff’s salary, the defendant’s blocked application on the bank’s salary account has the consequences of foreclosure, while the adoption of the case should be decided, the establishment of a provision in writing required a violation that was not considered correct.
CONCLUSION: For the reasons described above, it was unanimously decided on 09/04/2018 that the decision would be OVERTURNED for the benefit of the plaintiff by accepting the appeals of the plaintiff’s attorney, and that the upfront appeal fee he paid would be returned to the appellant at his request.
