16 Jan Release Of Attachment
T.C SUPREME COURT
Main: 2018/ 613
Decision: 2019 / 262
Decision Date: 21.01.2019
Case: A) Plaintiff Prompt:
The plaintiff claimed that the notification of the payment order was irregular, that the enforcement proceedings initiated against him should be stopped and that the foreclosure placed on his real estate should be removed.
B) Respondent’s Response:
The defendant’s attorney claimed that the debts subject to follow-up …do not belong to the cargo, the sales basis execution follow-up files 2 5224 03 03 1010713 034 05-35 the workplace file is registered on behalf of the plaintiff, that the follow-up has been completed, that there is no violation of the law in the foreclosure, that the courts authorized to look at the case are Istanbul labor courts, so the case filed primarily due to lack of authority and the decision to reject it on the basis.
C) justification and decision of the Court of First Instance:
“In accordance with the entire scope of the file and the report of the expert panel, the plaintiff has decided to reject the request of the debtor’s attorney to remove the foreclosure, to give the property subject to the case to the debtor so that he can buy a house suitable for the sale price of TL 160,000, to use the increased part in the payment of the debt”.
Appeal reference: appeal counsel for the plaintiff on the petition; 2 separate file in the expert report, it is this contradiction between different reports in the report report dated dated 24/03/2013 30/11/2015 of appraised value, must be resolved without expert reports favorable reports on the decision of the Supreme Court 10. 27/12/2013 date of the legal department 2013/18657 Esas, 2013/2608 Decision No.of the decision and file should be examined on the grounds that the decision of the court of First Instance was overturned and the case was decided on the request for appeal.
In the petition of the defendant’s SGK attorney; there are 2 expert reports in the file, there is a contradiction between the reports, the value is low, the expert report is insufficient, the decision has been examined and the decision has been made to reject the appeal.
D) decision and justification of the District Court:
District Court Court ; “30/11/2015 in the report given in the delegation of 200,000,00 TL value was assessed, the plaintiff can receive a house suitable for a similar area and nature with a price of 160,000,00 TL based on the expert report stated that the decision given by the court of first instance is in accordance with the procedure and law” on the grounds that the attorney of the plaintiff and the defendant’s attorney of the institution unanimously decided to “fundamentally reject” the requests for protection.
E) appeal: reasons for appeal of the defendant SSI:
– That the expert report is not suitable for making a decision,
– The determined value of the embarrassed property is afaki,
– Structural features of the real estate, zoning status, such as many situations are determined to be only 200,000 TL without taking into account the evaluation,
-160.000 TL real estate can be made according to what criteria is not examined in the report, abstract expressions are determined,
-He demanded that the decision be overturned, arguing that the deficiencies in the additional report were not addressed.
Reasons for the plaintiff’s appeal: – there is a contradiction between the expert reports and this contradiction and the appeal to the report has been decided without elimination. It has been declared by experts that the property may be worth between US $ 125,000 and US $ 135,000.- In the other expert report, the value of the house was shown to be very high. Although we submitted precedent house prices with their documents and objected to this expert report, our request to have another expert examine again was rejected by the court without justification.-… 17. 9 of the Supreme Court on the dispute of duties in the trial made in file E of the employment tribunal 2013/1086.Law Department, 2016/12171 E. 2016/9049 K. and 12/04/2016 with the decision of the plaintiff … with the employer … cargo A.P. the agency determined that the plaintiff was not an employer, and decided that the plaintiff was an employee of the defendant.-A decision should be made to remove the foreclosure on the real estate, taking into account issues such as the family structure of the plaintiff, the educational status of their children, the status of the workplace and school. Citing its reasons, the Local Court and the District Court requested that the decision be overturned.
F) evaluation of evidence and justification:
1-according to the articles in the file, the evidence collected, the necessary reasons on which the provision is based, the plaintiff’s rejection of other appeals beyond the scope of the following bend
2-the case relates to the request for the cancellation of the real estate foreclosure.
From the records and documents in the file; 2008/11999 No. 16883 dated 08.04.2008 dated 2007/5-2008/1 period of payment order was notified to the plaintiff on 14/04/2008, 24.11.2008 date and 57108 Document No. 2008/4-8 period debts 2008/14867 and 2008/14868 due to payment orders 2008/14867 and 2008/14868 subject to litigation real estate 01.12.2008 day and 21269 Journal number were not notified to the plaintiff about the foreclosure on 22.11.2012, the valuation was made and 1. Sale day and 2. It is understood that the real estate sale announcement dated 09/01/2013 by the Executive Sales unit of the Provincial Directorate of Social Security on the day of sale was notified to the wife of the plaintiff on 09/01/2013 and the case was opened on 14/01/2014.
In order for foreclosure to be made, a follow-up and payment order must be notified in accordance with the provisions of law 6183. In other words, there must be a completed enforcement follow-up against the plaintiff. Concrete event; although the plaintiff was notified of the payment order for the period 2007/5-2008/1 numbered 2008/11999, the real estate foreclosure notice dated 24.11.2008 and document 57108 and the 2008/4-8 period debts were placed in foreclosure due to the payment orders 2008/14867 and 2008/14868 numbered, according to the documents in the file, the payment order communicated to the plaintiff and the payment order subject to foreclosure is different.
The job consists of requesting documents related to the notification of payment orders 2008/14867 and 2008/14868 in the foreclosure notice from the defendant institution, asking which payment orders were placed for the foreclosure, investigating the health of the foreclosure and deciding according to the result.
In that case, without taking into account these material and legal facts, the decision of the District Court to reject the parties ‘ application for appeal as a result of incomplete examination and research is contrary to procedure and law, and the decision of the District Court to appeal must be eliminated for the reason written above, and the decision of the court of first instance must be violated.
D) conclusion: the decision of the District Court of Appeal is 373/1 of HMK 6100 for the reasons written above. in accordance with the articles (ABOLITION of the decision of the court of First Instance institution aspect of the appeal of a good corruption for the reason mentioned above, according to the study for now is not the place to file if the decision of the court of First Instance to be sent to an example of the Regional Justice Court, the appeal fee upon request, return to the plaintiff appeals, it was decided unanimously on 21.01.2019.