Summary:
In the objection of residence: The value that the borrower can buy a suitable house according to his social status should be determined through an expert witness, if this value is less than the value of the house subject to the objection of residence, the house should be sold, the price required to buy a house should be given to the borrower and the remaining price should be paid to the creditor.
In this case, it should also be decided that the sale will take place not less than the amount that the borrower can buy a house according to his social status.
T.C.
Supreme
General Assembly of Law
Mainly No:2013/659
Decision No:2014/252
K. Date:5.3.2014
(… In the enforcement proceedings initiated against the debtor, stating that his appropriate house has been foreclosed on, 82 of the IIK.it is seen that he applied to the executive court with a request to remove the foreclosure in accordance with the article, and the court decided to remove the foreclosure.
82/12 of the IIK.according to the article, the debtor’s “appropriate“ house cannot be foreclosed on. Whether a residence is suitable for the borrower’s situation is determined according to the social status of the said person at the time of foreclosure and the needs of the borrower and his family. The term “family” here is in a broad sense and includes dependents who live under the same roof with the debtor. By the executive court, the necessary price should be given for the borrower to provide the necessary residence for the jul to be accommodated with the aforementioned, and the amount required for the residence whose qualifications are determined above the sale price should be left to the borrower, the rest should be paid to the creditor.
Places that exceed these criteria, places that are qualified and occupied, places that cover rooms and halls that exceed reasonable dimensions, and places outside the dwelling that contain mandatory items for residence, are contrary to the purpose provided for in the article. The duty and title of the debtor do not require him to reside in a more magnificent abode than the one set out above.
In the concrete case, in the expert report prepared as a result of the discovery made by the court at the scene, the value of the real estate has been determined and but it is seen that the borrower can buy a house in more modest districts of the city that does not have luxury properties without determining the value, the expert’s report is respected and the judgment is established.
In this case, the work to be done by the court, by taking additional report from experts, the borrower where the real estate is located in the town of Tuzla, more modest place, you can get the value into a proper house after the detection of the detected quantity sold is less than the value of mahcuz mahcuz, the borrower was required to get into a proper house itself, the cost of the rest to be paid to the creditor, the borrower can take home less than the amount of the sale not to be proper to build into the decision should be based on the provision in the written form with the review report missing and inadequate facility is isabetsiz…)
The grounds were overturned and the file was returned to its place, but at the end of the retrial, the court resisted the previous decision.
APPELLANT: Counterparty-acting creditor
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
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:
Request, 82/12 of the IIK.it is related to the complaint of foreclosure due to the residence based on the article.
The complainant-the debtor, in the enforcement proceedings initiated against him by the creditor, claiming that his house has been foreclosed on, 82 of the IIK.mad-desi requested that the foreclosure be lifted as required.
The counterparty-the deputy creditor, defended the refusal of the case.
The court decided to remove the foreclosure upon acceptance of the complaint on the grounds that the foreclosed house belonging to the debtor is the appropriate house and cannot be foreclosed on; on the appeal of the opposing party-creditor’s attorney, the judgment was overturned by the decree taken by the Private Department in the same text as above.
From the contents of the file and the evidence collected; Kadikoy 7. In the execution file of the Enforcement Directorate based on 2006/15265, creditor A.He. by, the debtor m.B. for the total amount of receivables amounting to TRY 36,912.72 against Eagle 1.Business Mah.’sin
on 5.12.2006, based on decision No. 2006/7009 of 14.11.2006, based on decision No. 74 of 2005/2006, ilamli enforcement proceedings were initiated, the basis of which is the ilam; plaintiff A.He., defendant M.B. the debtor of the executive order, which is related to the collection of labor receivables arising from the defendant’s work at the place of work of the plaintiff, is M.it is understood that it was notified to the on 07.12.2006, the follow-up was finalized, and a lien was placed on the real estate on 31.07.2007.
82/12 of the Executive Bankruptcy Code of 2004.in the article; “The house corresponding to the debtor’s state (but if the value of the house is too much, the amount that can be taken in accordance with the state of the price is foreclosed and sold to be left to the debtor.).” it has been arranged that the appropriate household phenomenon will be determined by being called. In the reports received by the court, the value of the real estate subject to litigation has been determined, but the value of the house that can be taken into account has not been determined.
In that case by the court; by taking additional report from the expert, the borrower where the real estate is located in the Tuzla district, can buy into a proper house value should be determined; this value is less than the value of the home if the subject of the case attached mahcuz home sold into proper payment to be taken home to be given to the debtor, the creditor and the amount remaining to be paid to the borrower the amount of the sale of your house into a proper home can take mahcuz not to be less than that should be decided to be made.
For the reasons described, it is necessary to comply with the court’s decision to overturn, while resisting the previous decision is contrary to procedure and law, and the decision to resist must be overturned.
result
Provisional Article 3 of the Civil Procedure Code No. 6100 on the acceptance of appeals by the opposing party-the creditor’s deputy, and for the reasons specified in the decision to resist, the decision to overturn, No. 6100 of the Civil Procedure Code.taking into account the attribution of the article HUMK.429th.in accordance with Article 366 | in of the Enforcement Bankruptcy Code No. 2004, the procedure is VIOLATED, if requested, the advance fee for the appeal is returned to the depositor.in accordance with the article, a unanimous decision was made on 05.03.2014, within 10 days from the notification, the way to correct the decision was open.
