A. PROCEDURE FOR COMPLAINING ABOUT THE BAILIFF’S ACTION
As it is known, the transactions carried out by the enforcement and bankruptcy directorates are procedural transactions such as seizure, sale and sending a notification to the debtor, which must be carried out in accordance with legal regulations and laws. The right to file a complaint against the improper execution of these transactions is regulated in Article 16 of the Execution and Bankruptcy Law No. 2004 (“EBL”), and according to the relevant regulation, the transactions must be in accordance with the law, without unreasonable delay, in accordance with the event and for the fulfilment of the right. A complaint may be filed before the court against the execution and bankruptcy directorate transactions that are not carried out in accordance with these criteria.
The complaint of the bailiff’s action is not a lawsuit within the meaning of Article 118 of the Code of Civil Procedure No. 6100 (“CCP”), but is a legal remedy that belongs to the structure of the enforcement and bankruptcy law. There are two parties in the complaint, and the parties are named as the complainant and the complainant, not the plaintiff and the defendant. Since the main thing here is the protection of the interest, the right to complain about the bailiff’s transaction is granted to those who have a current and legal interest, and it is not possible for the directorate to spontaneously bring the file to the court with a complaint request. Therefore, first and foremost, the debtor and the creditor may file a complaint against the bailiff’s action, as well as third parties related to the file.
The issue that should be noted here, and which is special in terms of the problem of which party will be charged the attorney fee, which is the subject of this article, is that although the execution officer’s transaction will be complained, the execution directorate cannot be shown as a party to the complaint on its own. In other words, if the execution officer’s action is complained, the counterparty to the complaint must be the person / institution that benefits from the transaction established by the directorate.
As a rule, the complaint period is regulated as seven days from the date of learning of the bailiff’s action, and this period is a forfeiture period. However, exceptionally, in cases where a right is not fulfilled and protracted for no reason, the seven-day period is not sought, and the person concerned can always apply to complain about the bailiff’s action.
The competent court for the complaint is the court of execution law to which the execution and bankruptcy directorate that made the transaction in question is subject. As a result of this complaint, the court examines the transaction established by the relevant directorate and renders a decision as acceptance or rejection of the complaint.
At this point, the issue that causes a legal debate is who will pay the attorney’s fee in the event that the bailiff’s action is subject to a complaint and the complaint is accepted. In the event that the bailiff’s action is subject to a complaint, the person who is involved in the complaint as the complained party is actually obliged to pay an attorney’s fee against the bailiff due to the irregular transaction arising from the bailiff’s action. In this article, this debate will be discussed and an evaluation will be made in the light of different judicial decisions.
B. ATTORNEY’S FEE IN CASE OF ACCEPTANCE OF THE COMPLAINT AGAINST THE BAILIFF’S ACTION
If the complaint is decided to be accepted in the case of complaint against the execution officer pursuant to Article 16 of the EBL, it is unfair to leave the judicial expenses on the complainant and to award an attorney fee against the complainant. In fact, the fact that the other party, who is not involved in the improper action of the bailiff, is sanctioned at the end of the day, causes this debate. Although there is no established case law on this issue, there are contradictory decisions. In the decision of the 4th Civil Chamber of the Court of Cassation dated 01.11.2017, numbered 2017/3342 and decision numbered 2017/6658;
“The court accepted that the plaintiff was not indebted and decided to accept the lawsuit; the defendant was held responsible for the trial expenses and attorney fees. In the examination of the file; … In the 16th Execution Directorate’s follow-up file numbered 2012/15582, it is understood that the 1st and 2nd attachment notices were sent to the plaintiff bank pursuant to Article 89 of the EBL upon the request of the creditor-defendant, and the plaintiff bank submitted objection petitions to these notices, but there is no record on the petitions showing that no one from the enforcement directorate officials has been transferred to the file, and in this direction, there is a minute dated 26/12/2012 signed by the deputy executive director. In that case, it is understood that the objections were not in due time, the issuance of the 3rd attachment notice was correct and the defendant did not cause the case at hand to be filed. For the reasons explained, it was not deemed correct to award an attorney fee and trial expenses against the defendant who had no fault in the filing of the lawsuit.”
Therefore, in accordance with the relevant decision, it should not be possible for the defendant to be held liable for an attorney fee for a transaction that it did not cause. In the same direction, in the decision of the 32nd Civil Chamber of the Ankara Regional Court of Appeals dated 01.12.2020, numbered 2020/503 Main and 2020/703 Decision;
“…however, since it is understood that since the subject of the complaint is the execution directorate transaction, the attorney fee and trial expenses should not be awarded in favor of the creditor, it has been necessary to decide to partially accept the appeal application, as it is seen that the appeal request of the defendant debtor’s attorney in this respect is appropriate”
On the contrary, in the decision of the 12th Civil Chamber of the Court of Cassation dated 04.07.2023 and numbered 2022/9757 main and 2023/4535 decision, it is stated as follows
“…. since it could not be proved that the notification process was irregular, that the debtor learned of the irregular notification before, it was decided to reject the appeal application on the merits in accordance with Article 353/1-b.1 of the CCP on the grounds that there was no inconsistency in the decision made by the Court of First Instance regarding the determination that the date of 24.01.2021, which the debtor declared that he was aware of the irregular notification in accordance with Article 32nd of the Notification Law, was the date of notification, and that there was no inconsistency in the award of trial expenses and attorney fees against the creditor since the creditor requested the decision to dismiss the case… the decision examined on appeal is in accordance with the procedure and law according to the mutual claims and defenses of the parties, the documents they rely on, the legal rules that should be applied to the dispute and the characterization of the legal relationship, the conditions of the case, the rules of trial and proof and the reasons stated in the decision, and the reasons put forward in the creditor’s appeal petition are not deemed to be of a nature that requires the decision to be reversed.”
In our law, the answer to this question was originally regulated under Article 11 of the Attorney Minimum Fee Tariff published in the Official Gazette dated 21.12.2015 and numbered 29569. According to the relevant regulation, “In the complaints made to the enforcement court due to the actions taken by the enforcement and bankruptcy directorates, in the decisions to accept the complaint to be made due to the fault of the enforcement and bankruptcy officer, a lump sum fee is ruled against the Treasury.” With this regulation, it was envisaged that the attorney fee to be awarded in favor of the complainant in the event of the acceptance of the complaint case would be taken from the Treasury in lump sum, thus protecting the interests of the complainant who was not involved in the irregular transaction. However, with the amendment made by the Tariff on the Amendment to the Attorney Minimum Fee Tariff published in the Official Gazette dated 30.11.2016 and numbered 29904, paragraph 4 of Article 11 has been repealed and no provision can be made against the Treasury in terms of the lump sum attorney fee to be awarded by the courts.
As can be seen, in the absence of a clear regulation in the legislation on this issue and the lack of unity in judicial decisions; in the event that the bailiff’s transaction is complained and the court decides to accept the complaint, the issue of attorney fee comes to the fore. In our opinion, it is not in accordance with justice that a person who has no intervention in the irregularity of the bailiff’s transaction subject to the complaint is obliged to pay an attorney fee in this way.
Author: Atty. Ebru ÖZKAN & Legal Intern Elif Berfin TATLI