T.C. SUPREME COURT
Date of Decision: 09.04.2015
IN ACCORDANCE WITH THE DECISION TO CANCEL THE COMPLAINT CASE – A DECISION SHOULD BE MADE ACCORDING TO THE RESULT BY EVALUATING THE EXPERT REPORT RECEIVED BY THE COMPLAINANT IN ACCORDANCE WITH THE ORDER – THE IMPOSSIBILITY OF ESTABLISHING A PROVISION BY QUOTING A RESULT OF A MATERIAL ERROR
ABSTRACT: In accordance with the court’s decision on the destruction of our Apartment, the complainant will receive 166/2 of the Law No. 1136 on Advocacy. although the subject matter of our Apartment’s construction and the characteristics of the concrete event are different, it was not correct to establish a provision based on the erroneous justification created by quoting a material error.
(1136 P. K. m. 166) (2004 P. K. m. 15, 59, 100, 138, 206)
Case and Decision: At the end of the trial conducted in accordance with the decision to deconstruct the complaint on the order line between the parties, the complaint was appealed to the N… attorney during the period of the decision made to accept the complaint for the reasons written in the decision.
Since the subject of appeal is not subject to a hearing due to the nature of the decision, after the refusal of the request for a hearing, it was decided to conduct the review on the documents and it became clear that the request for an appeal was in due course, the file was examined, the need was discussed and considered.
The deputy of the complainant states that his client will receive a power of attorney fee from the follow-up debtor due to the elimination of the partnership and the determination of interest in the installment of inheritance, the cost of these cases is related to the real estate subject to sharing, as a result of these cases, the real estate is transferred to the follow-up debtor, 166 of the Lawyer’s Code. in accordance with Article 4, in this case, the person who will receive the power of attorney fee should be registered on the order sheet as a priority receivable, but only after his client has been complained of in violation of the said legal regulation. claiming that he was registered in the queue, taking into account the priority right of his client’s receivables with the cancellation of the queue ruler 1. he asked you to register in the queue.
The N… deputy of the complainant has requested the rejection of the complaint. The other complainants did not respond to the complaint.
206 of the IIK, according to which the court will receive the complainant. since it is not one of the privileged receivables regulated in the article and does not meet the conditions of participation in the first-place foreclosure, the decision to reject the complaint with a bet was made by our Department dated 04.03.2013 and 557 E., 1236 K. according to the addition No. 166/2 of the Law No. 1136 on Advocacy, the claimant’s receivables entering into the queue line are as follows. according to the scope of the claim, defense and file, according to the scope of the complaint, the complainant lawyer was not paid a proxy fee due to the dismissal, the follow-up initiated by the complainant was finalized for its collection, because the said proxy fee was one of the priority receivables, in this case, the subject of the share first of all, money, calculating the relative power of attorney that the complaining lawyer must receive due to the enforcement proceedings initiated for the collection of the power of attorney (IIK 138/3. mad.) and 100 of the IIK from the point of view of the complainant with the dates of foreclosure of the increased money to other creditors included in the queue line. on the grounds that the order chart subject to the complaint is not regulated in accordance with these general principles described, it has been decided to cancel the order chart with the acceptance of the complaint.
The decision was appealed by the N… deputy of the complainant.
The complaint is related to the queue on the queue ruler.
Although the court brought follow-up and case files that are the basis for the fact that the complainant’s lawyer will receive a power of attorney fee in accordance with the order of annulment, in accordance with the order of annulment of our Department, and an expert report was received in accordance with the order of annulment, the expert report was not respected in accordance with Article 138 of the IIK. based on the article, it was decided to accept the complaint.
Article 138/2 of the IIK, entitled “Distribution of funds”; “Expenses that concern all creditors, such as foreclosure, cashing and sharing, are first taken from the sale amount and the receivables are apportioned relatively, including increased money tracking costs and interest processed.” according to the regulations of the same article 3. in the subparagraph; “The amount of the power of attorney fee for follow-ups made through the proxy is calculated by the bailiff according to the attorney fee tariff, regardless of the contract concluded between the creditor and dec debtor. The power of attorney fee determined in this way is also included in the follow-up costs.” it has been edited. In accordance with this regulation, after the common expenses related to all creditors are taken from the sale price, the increased money is paid to the creditors in accordance with the receivables, including the principal receivables, interest and follow-up expenses if requested, including the receivables. The follow-up expenses here are only the expenses related to that creditor and the expenses related to his follow-up, the costs of payment and notification of the executive order, the fees paid by the creditor in advance (IIK 15 and 59. mad.) and is a proxy fee. The power of attorney fee mentioned in the aforementioned regulation is one of the follow-up expenses and is calculated directly by the executive officer during the apportionment and added to the receivable of the creditor. There is no need for a separate tracking for this power of attorney fee.
The Law No. 1136 on Advocacy is 166/2. the article states that “Due to the fee agreed by the contract and appreciated by the judge, the client has a priority right over the goods that he keeps or earns as a result of his own work, as well as the money that will be collected in accordance with the ilam from the other party in the case or the goods that will be received in comparison with other creditors. The priority right is sorted according to the date of issuance of the power of attorney, and if the power of attorney is public, it is sorted according to the date of the first official application for the job subject to remuneration on behalf of the business owner. In case of bankruptcy of the business owner, it is also a priority that the lawyer will receive a power of attorney fee. However, the provision of the first paragraph of Article 206 of the Enforcement and Bankruptcy Code dated 09/06/1932 and numbered 2004 is reserved. it contains the provision “. The attorney’s fee, which is stated to be a priority in this regulation, is related to the money or goods that his client retains or earns on his assets as a result of the work and overtime of the lawyer. For example, the immovable subject to the cost share, the debtor filed by debtor as a result of the trial and cancel registration of a deed or assets acquired as a result of a lawsuit against the debtor in this direction that opens, preserved the assets of the debtor, if the other hadn’t shown up in the hands of the borrower to explain in this case, the debtor’s attorney, the attorney will receive in which the attorney’s fee, to be determined according to the date of filing of power of attorney or official regulation of the sequence within the framework ruchanli is compared to other creditors.
In the concrete case, the complainant, …2. 2010/17786 E of the Executive Directorate. in the enforcement proceedings initiated in the numbered file, the basis of the receivable is determined by the “power of attorney fee agreement between the dector and Ankara 12. 2009/510 E of the Magistrate’s Court. due to the termination of his numbered file by the magistrate, he will receive a power of attorney fee” and “in accordance with the power of attorney agreement dated 03.03.2009 (another) Ankara 6. 2009/406 E of the Commercial Court of First Instance. the balance arising from the numbered file is shown as ”I will receive the power of attorney fee. 166/2 of the Complainant’s Lawyer’s Law No. 1136. these receivables, which he claims are pre-emptive within the scope of his article, constitute the main receivable part of the enforcement proceedings. 138/3 of the IIK. the power of attorney fee stated in the article is the power of attorney fee, which is included only in the expenses related to this follow-up, as described above. The subject of the complaint is Article 138/3 of the IIK. there is no power of attorney fee set out in the article, but it is intended for the queue on which the complainant will receive the power of attorney fee allocated in the queue line.
In this case, the court considers that the complainant will receive in accordance with the decree on the destruction of our Apartment 166/2 of the Law No. 1136 on Advocacy. the expert report received on whether it is within the scope of the article has been evaluated within the framework of these statements made above, and a decision should be made according to the result, while our Department dated 27.12.2011 and 4374 E., 2875 k. although the subject of the numbered ad and the characteristics of the concrete event were different, it was not correct to establish a provision in writing based on the erroneous justification created by quoting as a result of a material error.
Conclusion: For the reasons described above, the decision was made unanimously on 09.04.2015 to accept the appeals of the N…deputy of the complainant and to overturn the provision of the said complaint, to refund the advance fee on request, to correct the decision within 10 days of the notification of the decision, with the path open for correction of the decision.