T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
E. 2017/12-1147
K. 2017/1304
T. 8.11.2017SUMMARY: The right to request a lien falls on the expiration of one year from the date of notification of the payment order. If the creditor does not make a lien request within the one-year period or does not withdraw the lien request and does not make a lien request again within this one-year period, the follow-up file will be removed from the transaction. In this case, the follow-up file is removed from the transaction only; otherwise, the enforcement proceedings will not be dropped. He can request a lien on the same follow-up file by requesting a renewal.
If the creditor has requested a lien within a one-year period, the fact that the debtor’s property has not been foreclosed within the same one-year period does not require that the right to request a lien be reduced and therefore the follow-up file be removed from the transaction.In this case, the request to foreclose on the debtor’s property is not a renewal request.
The deputy creditor has requested the foreclosure of the debtors’ real estate and the debtor’s salary within a legal one-year period, but the creditor’s right to request a lien has not been reduced. In this case, in order for the creditor to request a lien again, the debtor does not need to be notified of the renewal order and therefore the renewal fee is not charged, and the creditor can request a lien directly without requesting a renewal.
CASE: At the end of the trial between the parties for requesting the “cancellation of the civil servant transaction by complaint”, the Decca Enforcement (Civil) Court issued 10.07.2013 days and 2013/2013 regarding the rejection of the complaint., 2013/12 K. upon request of the deputy complainant of the appeal examination of the decision No. 12 of the Court of Cassation. The day of 05.12.2013 and the day of 2013/31165 E of the Legal Department., 2013/38701 K. by his numbered decision,
“…The creditor’s right to request a lien falls with the expiration of one year from the date of notification of the payment order (IIK article 78/2.C.1). In this case, the follow-up file will be removed from the process (md.78/4) the creditor must make a renewal request in order to request a lien and this request must be notified to the debtor. 5 Of the same article from the other side. in the paragraph; It is stipulated that fees will be charged upon renewal request for non-disclosure-based follow-ups.
A concrete case in example 7. Payment order, the first in the history of borrowers 18.9.2009, 30.9.2009 on the second,and the third by the creditor on the date 01.10.2009 bent on 10.3.2010 has been notified and 26.05.2010 in the history of the legal estate of the debtor and the debtor within a year…’s salary being requested the seizure of the creditor “bankruptcy” the right has not fallen. In this case, in order for the creditor to request a lien again, IIK 78/5. in accordance with the article, there is no need to notify the borrower of the renewal order and, consequently, to charge the renewal fee. In other words, the creditor may request a lien directly without requesting a renewal. 110/3 of IIK. in its article, it is regulated that the creditor is responsible for expenses such as placement and storage of the lien. Since the mentioned regulation is not related to the renewal fee and the foreclosure request period, there is no place for application in a concrete event.
In that case, it is inappropriate for the court to decide to reject the complaint when it should be accepted…”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and turning the file back to its place.
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
DECISION : The request relates to the request for cancellation of the officer’s action by way of complaint.
The complainant’s representative, the respondent has started enforcement proceedings against debtors in the Executive Office on 11.09.2009 borçka ilamsiz if the payment order had been communicated to all of the debtors that have not been contested within the time determined to follow up debtors about the enforcement operation is performed that many, but for any period specified in the relevant articles of the EBL File No. 2004 foreclosures foreclosures placed with regards to the process of the removal of the decision has been made, and the first file given on 22.04.2013 a petition has been requested renewal of the foreclosure process, as for the renewal, it was decided that the application and advance fee should be deposited, the Borçka Enforcement Agency’s transaction was unfair and contrary to public order, the Borçka Enforcement Agency’s 2009/921 follow-up file dated 22.04.2013 with the cancellation of the decision entitled “Decision Tensip Minutes”, which was issued by the complaint, the file was decided to be renewed without a fee.
Subject to trial by a local court the Executive Office of attorney of the creditor’s borçka 2009/921 on 10.03.2010 foreclosures numbered in the following file that is in demand, and the borrowers belonging to Tk and numbered on plate 34 34 498 7400 vehicles have been sequestered 11.04.2010 where ZP, then the creditor you owe the attorney on 26.05.2010…’s salary if asked to foreclosure, distraint without any information and documentation that applies in the file after this date, the creditor’s attorney, file the absence of any demand on, the vehicles were seized according to the date of the sale of the vehicle is not possible until the date 11.04.2011, this demand was not until a vesting date, the date falling on the adoption of the warrant would require, as it fell 11.04.2011 removed from the Proceedings of the warrant until the date 12.12.2012 file date time of the file, since it’s been treated for more than a year removed from any irregularities in the absence of treatment, the renewal of files that were removed from the first 78/5 if requested in accordance with the provisions re-grout retrieved, it was decided to dismiss the complaint on the grounds that the Enforcement Agency’s decision to reject the renewal request due to non-payment of the renewal fee was in accordance with the Law, and the decision was overturned by the Private Department on the grounds described in the title section above upon the appeal of the complainant’s attorney.
The court decided to resist by repeating the previous grounds.
The decision to resist has been appealed by the deputy complainant.
The dispute that comes before the General Assembly of Law by way of resistance is resolved in accordance with Articles 78/2 and 4 of the IIK. the legal requirement in the paragraphs (if a lien has been requested within one year from the notification of the payment order) is collected at the point where the file can be removed from the transaction for other reasons after it has been fulfilled.
As is known, the creditor’s right to request a lien is subject to a one-year period. The right to request a lien falls on the expiration of one year from the date of notification of the payment order. (IIK’s 78/2. article C.1) The creditor has a one-year term (IIK 78/2. md.) if he does not make a lien request in it, or if he does not withdraw a lien request (which he made within a year) and does not make a lien request again within this (same) one-year period, the follow-up file will be removed from the transaction. (78/4 md.) In this case, the follow-up file is removed from the process only; otherwise, the enforcement proceedings will not be dropped. In other words, enforcement proceedings remain a concern. In this case, it may request a lien in the same follow-up file by requesting a renewal. (78/5 md.)
In contrast, if the creditor has requested a lien within a one-year period, the fact that the debtor’s property has not been foreclosed on within the same one-year period (or even later) does not require the right to request a lien to be reduced and therefore the follow-up file to be removed from the transaction. In this case, the enforcement proceedings remain a problem, and the creditor’s request to foreclose on the debtor’s property in accordance with the foreclosure request made within a one-year period (after a year has elapsed) is 78/5 of the Enforcement and Bankruptcy Code. it is not a renewal request in the sense of its article. In other words, in this case, the creditor does not need to pay the fees again and notify the debtor of the request. (Dry B.: EI Book on Enforcement and Bankruptcy Law, 2013, 2. Edition, sh 414, 415).
In a concrete case, example 7 payment orders were notified to the first of the debtors on 18.9.2009, the second on 30.9.2009, the third on 01.10.2009, and the creditor’s deputy requested the lien of the debtors’ securities and the debtor’s salary within a legal one-year period, but the creditor’s right to request a lien was not reduced. In this case, in order for the creditor to request a lien again, IIK 78/5. in accordance with the article, there is no need to notify the borrower of the renewal order and, consequently, to charge the renewal fee. In other words, the creditor may request a lien directly without requesting a renewal.
As such, it is contrary to the procedure and the law to resist the previous decision on the erroneous grounds that the decision to disrupt the Private Office adopted by the local court and the General Assembly of the Law should be followed.
Therefore, the decision to resist must be overturned.
CONCLUSION : It was decided unanimously on 08.11.2017 that the decision of the complainant’s deputy to resist the acceptance of appeals would be OVERTURNED for the reasons shown in the decision to overturn the Special Chamber, and if requested, the advance fee of the appeal would be returned to the depositor, with a clear way to correct the decision.
