T.R. SUPREME COURT
- Law Office
Basis: 2014/8017
Decision: 2015/2377
Decision Date: 09.04.2015
COMPLAINT ACTION ON THE RANKING SCHEDULE – ACCORDING TO THE COMPLAINT’S RECEIVABLE EXPERT REPORT TO BE EVALUATED AND A DECISION MUST BE MADE ACCORDING TO THE RESULT OF THE COMPLAINANT IN ACCORDANCE WITH THE WARRANTY OF FRINGEMENT – FAILURE TO RESULT WITHOUT FINANCIAL ERRORS
SUMMARY: In line with the annulment decision of our Chamber, the court decided that the complainant’s claim will be taken under Article 166/2 of the Attorneyship Law No. 1136. While a decision should be made based on the result of the expert report on whether it is within the scope of the article, although the subject of the verdict of our Chamber and the characteristics of the concrete case are different, it was not correct to establish a judgment based on the erroneous justification created by quoting as a result of a material error.
(1136 S. K. art. 166) (2004 S. K. art. 15, 59, 100, 138, 206)
Case and Decision: At the end of the trial, which was held in accordance with the order list between the parties and the decision of reversal of the complaint, due to the reasons written in the decision, within the sentence given for the acceptance of the complaint, the complainant N… was appealed with a hearing.
Since the decision subject to appeal was not subject to a hearing due to its nature, the file was examined, after the refusal of the hearing request and the decision to carry out the examination on the document and it was understood that the appeal request was in time, the necessary matter was discussed and considered.
The complainant’s attorney stated that his client has attorney’s fees from the debt follow-up debtor due to the dissolution of the partnership by inheritance division and negative clearance lawsuits, that the cost of the lawsuits is related to the immovables subject to sharing, as a result of these lawsuits, the immovables are brought to the debtor of the proceedings, in accordance with Article 166 of the Attorneyship Law. In this case, he claimed that the attorney’s fee receivable should be recorded in the order list as a priority debt, but his client was recorded in the 4th rank after the complaints against the aforementioned legal regulation, and he requested the cancellation of the rank list and the registration of his client’s receivables to the 1st rank, taking into account the priority right.
The attorney of N…, who was complained about, requested the dismissal of the complaint. Other complainants did not respond to the complaint.
The decision given by the court regarding the rejection of the complaint on the ground that the complainant’s receivable is not one of the privileged receivables regulated in Article 206 of the İİK and does not meet the conditions of participation in the first rank, with the decision of our Chamber dated 04.03.2013 and numbered 557 E., 1236 K. , 166/2 of the Attorneyship Law No. 1136. In the event that it is determined whether it is within the scope of the provision of Article 3 of the Law, it has been reversed by stating that the priority right should be determined and the result should be reached. The prosecution initiated by the complainant for the collection is finalized, due to the fact that the said attorney’s fee receivable is among the priority receivables, in this case, the relative attorney’s fee required to be received by the complainant lawyer due to the enforcement proceedings initiated for the collection of the attorney’s fee is calculated first from the money subject to the sharing (İİK’s 138/3 . art.) and the remaining money should be distributed to the other creditors in the order list, taking into account the lien dates and whether the conditions in article 100 of the EBL for the complainant are fulfilled, and that the order list subject to the complaint is not arranged in accordance with these general principles. With the acceptance of the complaint, it was decided to cancel the order list.
The attorney of N…, against whom the complaint was made, appealed against the decision.
The complaint is about the order in the order table.
The court decided to accept the complaint based on Article 138 of the EBL, regardless of the expert’s report, despite the follow-up and case files constituting the basis for the attorney’s fee to be collected, in accordance with the reversal order of our Chamber, and an expert report was obtained in line with the reversal decision.
Article 138/2 of the İİK, titled the distribution of money; “Expenses that concern all creditors such as lien, redemption and distribution are first taken from the sales amount and distributed in proportion to their receivables, including increased money follow-up costs and accrued interests.” regulation, in the 3rd paragraph of the same article; “The amount of the attorney’s fee in the proceedings made through a proxy is calculated by the bailiff according to the attorney’s fee schedule, regardless of the contract made between the creditor and the debtor. The attorney’s fee determined in this way is also included in the follow-up costs. regulation is included. Pursuant to this regulation, after the common expenses concerning all creditors are deducted from the sale price, the remaining money is paid to the creditors in proportion to their receivables, including the original receivable and, if requested, the accrued interest and follow-up expenses. Follow-up expenses here are only expenses related to the follow-up of that creditor.
These are the costs of payment and notification of the execution order, the fees paid in advance by the creditor (Articles 15 and 59 of the İİK) and the attorney’s fee. The attorney’s fee mentioned in the aforementioned regulation is one of the follow-up expenses and is calculated directly by the bailiff during the allocation and added to the creditor’s receivable. There is no need for a separate follow-up for this attorney’s fee.
Attorneyship Law No. 1136 166/2. According to the article, “Due to the fee determined by the contract and appreciated by the judge, the client has the right of priority over other creditors over the goods that the client has retained or earned as a result of his work, and the money to be collected or the goods to be received from the other party in accordance with the verdict. The priority right is in order according to the date of issue of the power of attorney, and if the power of attorney is general, the date of the first official application for the job subject to wages on behalf of the employer. In case of bankruptcy of the employer, it is also preferable that the attorney will receive the attorney’s fee. However, the provision of the first paragraph of Article 206 of the Execution and Bankruptcy Law dated 09/06/1932 and numbered 2004 is reserved. contains the provision. The attorney’s fee, which is stated to be preferential in the said regulation, relates to the money or goods that the client keeps or brings to his assets as a result of the lawyer’s labor and time. For example, if the immovable whose value is shared is brought into the assets of the debtor as a result of a title deed cancellation and registration lawsuit filed by the debtor or preserved in the assets of the debtor as a result of a lawsuit filed against the debtor in this direction, if another explanation has not been left by the debtor, the attorney undertaking the attorneyship of the debtor in this case. The fee receivable is preferred over other creditors within the framework of the order to be determined according to the issuance of the power of attorney or the official application date.
In the concrete case, the complainant …2. In the enforcement proceedings initiated by the Enforcement Directorate in the file numbered 2010/17786 E., the basis of the claim is the power of attorney arising from the amicable termination of the file numbered 2009/510 E. of the Ankara 12th Civil Court of Peace due to the “attorney fee agreement” between the debtor and the prosecution. receivable from the attorney fee” and “the balance attorney fee receivable arising from the file numbered 2009/406 E. of the Ankara 6th Commercial Court of First Instance, pursuant to the (another) attorney’s fee agreement dated 03.03.2009”. 166/2 of the Attorneyship Law No. 1136 of the complainant. These receivables, which he claims to have priority within the scope of the article, constitute the main receivable part of the enforcement proceedings. 138/3 of the İİK. The attorney’s fee stated in the article is the attorney’s fee that is only included in the expenses related to this follow-up, as explained just above. The subject of the complaint is the 138/3 of the EBL. There is no attorney’s fee regulated in the article, but it is directed towards the order regarding the attorney’s fee receivable allocated to the complainant in the order list.
In this case, the court decided that the claim of the complainant in line with the annulment decision of our Chamber is in Article 166/2 of the Attorneyship Law No. 1136. While the expert report on whether it is within the scope of the article, is evaluated within the framework of the explanations made above, and a decision should be made according to the result, although the subject of our Chamber’s decision dated 27.12.2011 and numbered 4374 E., 2875 K. and the characteristics of the concrete case are different, the citation as a result of material error is different. It was not correct to make a written judgment based on the erroneous justification created by
Conclusion: For the reasons explained above, with the acceptance of the appeals of the complained N… attorney, the aforementioned reversal of the judgment, the refund of the prepaid fee upon request, with the possibility of rectification within 10 days from the notification of the decision, unanimously on 09.04.2015, It was decided.
