26 Jul Decision Must be Made According To The Result of The Expert Report That The Complainant Will Receive in Accordance With The Violation Notice
T.C. SUPREME
23.Legal Department
Basis: 2014/8017
Decision: 2015/2377
Decision Date: 09.04.2015
COMPLAINT CASE TO THE LINE LINE – ACCORDING TO THE VIOLATION NOTICE, A DECISION MUST BE MADE ACCORDING TO THE RESULT OF EVALUATING THE EXPERT REPORT RECEIVED BY THE COMPLAINANT – FAILURE TO ESTABLISH A SENTENCE BY QUOTING THE RESULT OF A MATERIAL ERROR
Summary: The Court, in accordance with the violation of our apartment, the complainant will receive 166/2 of the law on lawyers 1136. although the subject of the announcement of our apartment and the characteristics of the concrete event are different, it was not right to establish a provision based on the misleading justification created by quoting the result of material error.
(1136 P. K. m. 166) (2004 p. K. m. 15, 59, 100, 138, 206)
Case and decision: at the end of the trial, which was made in accordance with the order line between the parties, the complaint was appealed at a hearing by the N… attorney, who complained during the term given for the acceptance of the complaint for reasons written in the decriminalization.
Since the subject of the appeal is not subject to a hearing due to the nature of the decision, the case was reviewed and considered after it was decided that the review should be carried out on the document with the rejection of the hearing request and it was understood that the appeal request was in duration.
The attorney of the complainant said that his client will receive a proxy fee from the follow-up debtor for the elimination of the partnership with the division of inheritance and negative detection cases, the cost of these cases is related to the real estate subject to sharing, as a result of these cases, the real estate is awarded to the follow-up debtor, law 166. in accordance with Article 4, after the complaint of his client in violation of the aforementioned legal regulation, he must register in the queue line as a pre-emptive receivable. 1, assuming that it was saved in the queue, taking into account the priority right that his client will receive with the cancellation of the queue ruler. he must have asked you to register in the queue.
The N… attorney who filed the complaint requested that the complaint be dismissed. Other complainants did not respond to the complaint.
The court ruled that the complainant would receive 206. since it is not one of the privileged receivables arranged in the article and does not bear the conditions of participation in the First Order of foreclosure, the decision on the rejection of the complaint with betting, our apartment dated 04.03.2013 and 557 E., 1236 C. 166/2 of the law on lawyers No. 1136. focuses on whether the provision is within the scope of, and in this context, upon determining that the first right of the line that will take the determination and conclusion should be reached by specifying corrupted, made according to the warrant reversal of the judgment as a result, claim, defense, and file according to the scope, dismissing the complainant because of the attorney’s fee is a lawyer who hasn’t been paid due to the finalization of monitoring for this collection, initiated by the complainant, the attorney’s fee is ruchanli receivables receivables in question, in this case, primarily the subject of sharing money, calculation of the relative attorney fee that the complainant should receive due to the Enforcement follow-up initiated by the attorney for the collection of the attorney’s fee (iik 138/3. mad.) and other creditors included in the order line of increased money with the dates of foreclosure and the 100th anniversary of the iik in terms of the complainant. on the grounds that the row ruler subject to the complaint is not regulated in accordance with these general principles described, it was decided to cancel the row ruler with the acceptance of the complaint.
The decision was appealed by the N… attorney who filed the complaint.
The complaint relates to the queue in the queue ruler.
The court, in accordance with the violation notice of our apartment, in accordance with the violation notice, follow-up and case files that constitute the basis for which the complaining lawyer will receive a power of attorney fee were brought, although the expert report was received in accordance with the violation notice, without regard to the expert report 138 of the iik. based on the article, it was decided to accept the complaint.
Article 138/2 of iik, entitled The allocation of money; “expenses related to all creditors, such as foreclosure, cash and distribution, are first taken from the sale amount and distributed in the proportion of receivables, including increased money tracking costs and processed interest.”Regulation, 3 of the same article. bendinde; ” the amount of the attorney’s fee in follow-up through the proxy is calculated by the bailiff according to the attorney’s fee tariff, regardless of the contract between the decider and the debtor. The power of attorney fee assigned in this way is also included in the follow-up costs.”it has been edited. In accordance with this regulation, after the common expenses related to all creditors are received from the sale price, the increased money is paid to the creditors in relation to the receivables, including the actual receivables, interest and follow-up expenses incurred if requested. Follow-up expenses here are expenses related only to this creditor, related to his follow-up, payment and notification costs of the executive order, fees paid by the creditor in advance (iik 15 and 59. mad.) and is a proxy fee. The power of attorney fee mentioned in the said arrangement is one of the follow-up expenses and is calculated directly by the bailiff during the allocation and added to the creditor’s receipt. There is no need for separate follow-up for this power of attorney fee.
Law No. 1136 No. 166/2. article, ” because of the fee agreed by the contract and appreciated by the judge, the client has a pre-emptive right compared to other creditors on goods that he retains or wins as a result of his own work, as well as money that will be collected in accordance with the declaration from the other party in the case or goods that will be received. The right of priority is ranked according to the date of issuance of the power of attorney, and if the power of attorney is public, the date of the first official application for work subject to wages on behalf of the business owner. In case of bankruptcy of the business owner, it is also pre-emptive that the lawyer will receive a power of attorney fee. However, the provision of the first paragraph of Article 206 of the enforcement and Bankruptcy Law of 09/06/1932 and 2004 is reserved.”contains the provision. The attorney’s fee, which is stated to be a priority in this regulation, relates to the money or property that his client retains or earns in his assets as a result of the lawyer’s labor and shift. For example, the immovable subject to the cost share, the debtor filed by debtor as a result of the trial and cancel registration of a deed or assets acquired as a result of a lawsuit against the debtor in this direction that opens, preserved the assets of the debtor, if the other hadn’t shown up in the hands of the borrower to explain in this case, the debtor’s attorney, the attorney will receive in which the attorney’s fee, to be determined according to the date of filing of power of attorney or official regulation of the sequence within the framework ruchanli is compared to other creditors.
In a concrete case, the complainant, … 2. 2010/17786 E. in the execution follow-up initiated in the numbered file, the basis of the receivables, due to the “proxy fee agreement between the follow-up debtor, Ankara 12.Dec. 2009/510 E. Of The Magistrates Court Ankara 6 in accordance with the (another) proxy fee agreement dated 03.03.2009” with “due to the termination of the file numbered by the magistrate. 2009/406 E. Of The Commercial Court Of First Instance the balance caused by the numbered file will receive a power of attorney fee,” he said. 166/2 of the Attorney’s Law No. 1136. these receivables, which it claims to be pre-emptive under the article, constitute the actual receivables part of the execution follow-up. 138/3 of iik. the power of attorney fee expressed in the article is less than the power of attorney fee included in the expenses related to this pursuit, as described above. The subject of the complaint is 138/3 of iik. it is not a power of attorney fee organized in the article, it is aimed at the order in which the complainant will receive a power of attorney fee allocated in the line line.
In this case, the court has decided that the complainant will receive in accordance with the violation notice of our apartment 166/2 of the law on lawyers 1136. an expert report obtained on whether it is within the scope of the article is evaluated within the framework of these explanations made above, and a decision should be made according to the result, our apartment dated 27.12.2011 and 4374 E., 2875 K. although the subject matter of the numbered declaration and the characteristics of the concrete event were different, it was not correct to establish a provision in writing based on the misleading justification created by quoting as a result of material error.
Conclusion: for the reasons described above, the decision was unanimously decided on 09.04.2015, with the acceptance of the appeal objections of the complainant n…, the provision, the violation of the said complaint, the return of the advance fee on request, within 10 days from the notification of the decision, the way to correct the decision is clear.
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