T.C. Supreme Court 6. Law Department E. 2015/10497, K. 2016/2720, T. 4.4.2016
- CANCELLATION OF THE APPEAL TO THE ENFORCEMENT PROCEEDINGS INITIATED FOR THE COLLECTION OF THE LEASE RECEIVABLE AND EVICTION CASE ( IT IS WRONG THAT THE APPEAL WAS COMPLETELY REMOVED DUE TO INCOMPLETE PAYMENT OF THE LEASE PRICE – THE OBJECTION MUST BE REMOVED OVER THE REMAINING PART OF THE LEASE RECEIVABLE/DEFAULT/INCOMPLETE DEPOSIT OF THE LEASE MONEY )
- IT IS UNDERSTOOD THAT THE TOTAL AMOUNT OF THE LEASE IS MISSING FROM THE ATM OUTPUT ATTACHED TO THE APPEAL PETITION – THEREFORE, THE CASE OF DEFAULT HAS OCCURRED/BUT THE APPEAL MUST BE REMOVED OVER THE PORTION OTHER THAN THE AMOUNT WITH THE DEDUCTION OF THE MONEY INVESTED )
- REJECTION OF AN EVICTION REQUEST MADE BEFORE THE EXPIRATION OF THE 30-DAY PAYMENT PERIOD ( DUE TO WAIT FOR THE EXPIRATION OF THE PAYMENT PERIOD – THE CREDITOR’S EVICTION REQUEST FROM THE EXECUTIVE COURT IS EARLY/REJECTION OF AN EVICTION REQUEST/CANCELLATION OF AN APPEAL TO ENFORCEMENT PROCEEDINGS INITIATED TO COLLECT THE LEASE CLAIM AND EVICTION CASE/LEASE CLAIM )
6098 / m.315
2004 / m.269/4
Summary: the case relates to the cancellation of the appeal against the pursuit initiated for the collection of the lease receivables and the eviction requests of the lessor. The court decided to remove the defendant’s appeal and evict the lessor on the grounds that it was understood that the sum of the two-month lease amount to be paid was missing from the ATM output attached to the appeal petition, so it was understood that the phenomenon of default had occurred.In light of what is said, the court should remove the objection over the deduction of the payment that is accepted and the part that is excluded from this amount, while it is not correct to completely remove the objection. In addition, it was understood that the borrower was given a 30-day payment period with a payment order.An eviction request from the executive Court cannot be requested by the creditor until this 30-day payment period expires.A request for eviction from the executive Court was made by the creditor before the 30-day payment period had expired.The denial of the eviction request must be decided.
Case : the above date and number written decision issued by the Executive court was appealed by the defendant within the time limit, and all the papers in the file were read and discussed and considered as necessary:
Decision: the case relates to the cancellation of the appeal against the pursuit initiated for the collection of the lease receivable and the requests for the eviction of the lessor. It was decided by the court to accept the case, to remove the defendant’s appeal and to evict the subject of the case from the property, and the decision was appealed by the defendant’s attorney.
1 -) in the examination of the appeals to be received by the defendant’s attorney;
There is no dispute between the parties regarding the 3-year lease agreement dated at the beginning of 12.9.2013, which is based on the follow-up and is based on the decisionment. May April and May 2014, the plaintiff creditor requested the collection of TL 1,650.00 in April and May 2014 from TL 825.00 per month with the execution follow-up initiated on 7.5.2014. The payment order has been notified to the debtor on 29.5.2014 and in his objection during the time of the debtor; he stated that they entered into a lease agreement with the fathers of the creditor on 12.9.2013, but after the death of the lessor, their heirs could not agree between themselves, and that the lease to be subject to enforcement proceedings was paid to the account of the creditors ‘ attorney on 12.5.2014, accordingly, there was no decency debt. From the receipt attached to the appeal petition,it is understood that a payment of TL 1,645.00 was made to the business bank account on 12.5.2014 with the description of “… rent payment”. On appeal is filed, the plaintiff’s attorney, the defendant’s execution proceedings after 2 month’s rent as 12.5.2014 1.645,00 TL paid two month’s rent 1.650,00 TL to the bank, although the underlying lease cost of $ 5.00 as missing has been paid that the defendant committed the first ever payment, interest, costs and attorneys fees, which will be offset against the defendant’s objection objection on the grounds that the defendant’s unfair and is devoid of foundation, and demand that it be given to the decision to evacuate from the abolition of direct hires and has prosecuted. The defendant’s attorney defended the dismissal of the case by stating that they had submitted the payment statement to the file. The court decided to remove the defendant’s appeal and evict the lessee on the grounds that the sum of the two-month rent to be paid was TL 1,650, but the payment was TL 1,645.00 from the ATM output dated 12.5.2014 attached to the appeal petition,that is, the payment was incomplete, so it was understood that the phenomenon of default had occurred. In light of what is said,it is not right for the court to decide to remove the objection outright and to rule on enforcement-denial compensation over TL 1.650.00, while the deduction of the payment of TL 1,645.00,which is also accepted by the court, and the part other than this amount, should be removed.
2 -) as for the appeals of the defendant’s attorney for eviction;
On the basis of the written lease agreement of the beginning date of 12.9.2013, the plaintiff creditor initiated enforcement proceedings with a request for eviction on 7.5.2014, and the payment order was notified to the defendant debtor on 29.5.2014. It is understood that the borrower was given a 30-day payment period with the payment order. I.I.K.269/1 Article 315 (BK260. ) in accordance with the article, the creditor cannot request eviction from the executive Court until the expiration of the 30-day payment period. A request for eviction from the executive Court was made by the acting creditor on 19.6.2014 before the 30-day payment period expires. For this reason, it is not right to decide on evacuation in writing while it is necessary to decide on the rejection of the evacuation request.
The decision must be overturned for these reasons.
Result: 1 and 2 above. HMK 6100 with the acceptance of Appeals for the reasons described in paragraphs.or provisional 3 added By Law No. 6217.HUMK, in accordance with the provision of the article.in 428 and IIK.366.in accordance with the article, it was decided unanimously on 04.04.2016 to overturn the decision, to return the appeal fee received in advance to the appellant if requested.
