T.C THE DECISION OF THE SUPREME COURT
21.law office
Base: 2018/ 613
Decision: 2019 / 262
Date of Decision: 21.01.2019

Case: A) Plaintiff’s Request:

The plaintiff has requested that the notification of the payment order is irregular, that the enforcement proceedings initiated against him be stopped and that the foreclosure placed on his real estate be lifted.

B) Respondent’s Response:

The Defendant Institution’s deputy requested that the debts subject to follow-up … do not belong to the cargo, the sales basis enforcement follow-up files 2 5224 03 03 1010713 034 05-35 are registered on behalf of the plaintiff, that these follow-ups are finalized, there is no violation of the law in the foreclosure, the courts authorized to handle the case are Istanbul Employment Courts, therefore, the case filed is decided primarily for lack of authority and on the basis of refusal.

C) Justification and Decision of the Court of First Instance:

According to the report of the expert committee, ”In accordance with the entire scope of the file and the reputation, it was decided to reject the Claimant Debtor’s attorney’s request to foreclose, to give the debtor the right to buy a house corresponding to the state of 160,000 TL from the sale price by selling the real estate subject to the case for not less than 200,000 TL, and to use the increased part to repay the debt”.

Application for appeal: In the petition of the deputy plaintiff for appeal; there are 2 separate expert reports in the file, the report dated 24/03/2013 and the assets assessed in the report dated 30/11/2015 are different, this contradiction between the reports should be resolved, expert reports are not decisional reports, the Supreme Court 10. On the grounds that the decision and file of the Decision No. 2013/2608 of 2013/18657 of the Law Department dated 27/12/2013 should be examined, the decision of the court of first instance was overturned and the case was decided to be accepted, he applied for an appeal.

The defendant applied for an appeal in the petition of the SSI deputy; there are 2 expert reports in the file, there is a contradiction between the reports, the value is shown to be low, the expert report is insufficient, the decision is examined and decisively rejected by the request to be decided.

D) Decision and Justification of the District Court of Justice:

Regional justice by the tribunal ; “dated 30/11/2015 in the case of delegation, the exported report in 200.000,00 TL asset is alleged to be where the plaintiff’s similar to a proper home into the neighborhood and nature 160.000,00 TL can buy on the basis of the expert’s report specified that a decision by the court of First Instance was in accordance with the procedures of the law” on the grounds that the institution of the appeal of the defendant with the plaintiff’s attorney of Regents unanimously prompt of “a substantive denial” was decided.

E) Appeal: The defendant SSI reasons for the appeal:

-The expert’s report is not suitable for establishing a provision,

-The determined value of the embarrassed real estate is afaki,

-It has been determined that many situations such as structural features of real estate, zoning status are only 200.000 TL without taking into account in the evaluation,

– According to which criteria it is possible to get real estate for 160.000 TL, it is not examined in the report, it is determined with abstract expressions,

-In the additional report, he claimed that the shortcomings had not been corrected, and demanded that the decision be overturned.

The reasons for the plaintiff’s appeal:-There is a contradiction between the expert reports, and this contradiction and the objection to the report were decided without eliminating it. It has been stated by experts that the real estate may be in the december of TL 125,000 – TL 135,000.- In the other expert report, the value of the house was shown to be very high. Although we submitted the precedent house prices with our documents and objected to this expert report, our request to have another expert examined again was rejected by the court without justification.-… 17. The Supreme Court of Cassation on the dispute of duties in the proceedings held in the labor court’s file No. 2013/1086 E 9.Department of Law, 2016/12171 E. 2016/9049 K. and with the decision dated 12/04/2016, the plaintiff … and the employer … Cargo A.Sh. it was determined that the relationship between the agency is decoupled and that the plaintiff is the defendant’s employee, and it was determined that the plaintiff is not the employer.-Taking into account such issues as the plaintiff’s family structure, the educational status of his children, the workplace and the school situation, it is necessary to make a decision on the abolition of foreclosure on real estate. Citing his reasons, he demanded that the decision of the local court and the District Court of Justice be overturned.

F) Evaluation of Evidence and Justification:

1-Refusal of the plaintiff’s other appeals outside the scope of the following paragraph according to the articles in the file, the evidence collected, the compelling reasons on which the judgment is based

2-The case is related to the request to foreclose on real estate.

In the file of records and documents; Regulation No. 2007/5 dated 08.04.2008 2008/11999 number 16883-2008/1 on 14/04/2008 the payment of the order upon notification of the plaintiff for the period, with a notice of garnishment and date 24.11.2008 57108 Document No. 2008/4-8 2008/14867 about debts and money orders numbered 2008/14868 period due to the subject of real estate litigation and Lien were placed on the number 01.12.2008 21269 Journal day where the plaintiff is not made by the institution in relation to immovable notification regarding the remuneration mahcuz appraisals performed on 22.11.2012 and 1. Day of sale and 2nd. It is understood that the announcement of the sale of real estate 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 plaintiff’s spouse on 09/01/2013 and the case was filed on 14/01/2014.

In order for the foreclosure process to be carried out, a follow-up and a payment order duly executed in accordance with the provisions of Law No. 6183 must be notified. In other words, there should be a finalized enforcement proceedings against the plaintiff. In the concrete case; the plaintiff 2008/11999 number 2007/5-2008/1 have been presented in the order of payment for the period of that being said, with a notice of foreclosure and real estate 57108 date 24.11.2008 Document No. 2008/4-8 2008/14867 about debts and money orders numbered 2008/14868 period was due to foreclosures, where according to documents in the file, with the order of payment to the plaintiff to be communicated to the research subject is different, it is understood that the order of payment.

The work to be done consists of requesting documents from the defendant institution regarding the notification of payment orders numbered 2008/14867 and 2008/14868 in the foreclosure notice, asking for which payment orders the foreclosure was placed, investigating the health of the real estate foreclosure and making a decision according to its result.

In that case, this the financial and legal facts, without regard to the parties and the Appeal Tribunal, the result of review by the Regional Justice Research missing the merits of the appeal of denial of Justice decision on appeal against the law and procedures and owned regional court decision, to be eliminated for the reason stated above, the decision of the corruption of the court of First Instance had.

G) Conclusion: The decision of the District Court of Justice appealed is based on 373/1 of HMK No. 6100 for the reasons written above. in accordance with articles (ABOLITION of the decision of the court of First Instance for the reason mentioned above, according to the corruption institution of the appeal of a good aspect, now is not the place to study for the 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, the return to the plaintiff appeals, it was decided unanimously on 21.01.2019.