Summary:
Pursuant to Article 164/4 of the Attorney Law, it should be accepted that the plaintiff has the right to collect the contractual attorney’s fee specified in the article and the “opposing party’s attorney’s fee,” which is one of the litigation costs specified in the last paragraph of Article 164 of the same Law, from the amount paid to the client under the settlement agreement.
Accordingly, the subject of the attorney’s fee is the case file numbered 2006/519 of the Fethiye 1st Civil Court of First Instance, Fethiye 2nd Enforcement Directorate Case No. 2009/8277, and the settlement agreement between the parties, the attorney’s fee should be calculated according to the minimum fee schedule in Article 164 of the Attorney’s Act and should not be less than the amount of 5,500 TL delivered by the plaintiff to his client in the main case file, taking into account the amount exceeding this amount in both case files separately.
According to the article, the legal attorney’s fee shall be calculated as a contractual attorney’s fee between 10% and 20% of the amount, and according to the calculation to be made according to the Attorney’s Minimum Fee Schedule, the other Fethiye Enforcement attorney’s fee shall be calculated in the 2010/2011 case file, while the contractual and counterclaim attorney’s fees shall be calculated by the injured party according to the Minimum Fee. The attorney’s fee schedule, despite being agreed upon in writing to the contrary, is contrary to procedure and law and requires violation.
TC
Supreme
Law Office
Decision No: 2013/28635
Decision No: 2014/4819
Date: 24.2.2014
COURT: Fethiye 2nd Civil Court of First Instance
DATE: 16/07/2013
No.: 2012/193-2013/488
Decision
The plaintiff has also assumed the representation of Ülker Korkan in addition to the lawsuit filed against the defendant Fethiye. 1. Fethiye Civil Court of First Instance file no. 2006/519, 2. Enforcement Directorate’s enforcement case file No. 2009/8277 and Fethiye Enforcement Court’s enforcement case file No. 2010/2011, and the defendant and client are conciliation judges pursuant to Article 165 of the Law on the Bar. According to the article, the defendant is also liable for contractual and statutory attorney’s fees. The plaintiff has initiated enforcement proceedings against the defendant to collect contractual and statutory attorney’s fees.
Upon the defendant’s objection to the enforcement proceedings, the prosecution was suspended, and the plaintiff requested that the main objection to the enforcement proceedings be dismissed and that the defendant be ordered to pay compensation for denial of enforcement.
The defendant is a person who is not a party to the agency agreement concluded with the plaintiff. Although the plaintiff did not object to the enforcement proceedings, the defendant argued that they were not interested in filing a lawsuit to cancel this objection, that the amount agreed upon with the plaintiff’s client was 5,500 TL, and that they could only be held liable for the agency fee.
The court partially accepted the case, and the defendant appealed the ruling.
The plaintiff is represented by a defendant’s attorney at Fethiye 1st Civil Court of First Instance, file number 2006/519, Fethiye 2nd Enforcement Directorate, enforcement case file number 2009/8277, and Fethiye Enforcement Court, file number 2010/2011, K.. There is a defendant’s client with power of attorney at the address of Fethiye 1. While the trial was ongoing, the parties who were the defendant’s clients and the parties other than the plaintiff reached a settlement agreement based on this settlement agreement. It was decided that there was no need to rule on the case on the grounds that the First Instance Court’s case file numbered 2006/519 would not be pursued even if the appeal was upheld, that the enforcement file had been waived, and that the case pending before the enforcement court had become moot due to this agreement.
However, it is understood that the plaintiff was not paid attorney’s fees for this enforcement and these lawsuits, and that there was no written fee agreement.
Article 164 of the Attorney Law states that “in the absence of a written fee agreement between the parties, the value shall be determined based on the minimum wage and the fine, under which conditions to avoid litigation and examine the objections, the fee tariffs earned, and the percentage determined by the competent authority for the part of the case subject to the lawsuit by the business attorney, the value of the claim, between 10% and 20% of the value of the claim.”
Article 165 of the Law states that “in cases settled by agreement between the parties and left uncontested, both parties are strictly liable for the payment of attorney’s fees to the attorney, regardless of whether the conciliation criminal judge’s permission is obtained or any fees are charged.” When the case is settled by the justice of the peace, the attorney may definitively request from the client the amount agreed upon in their fee agreement and the power of attorney owed to the other party according to the amount determined in the case. (See Figure. GCM. 16.2.1994, 1993/13-810 E., 1994/60 K. Decision No. 1)
According to the responsibility for deposits, the same responsibility applies to the opposing party who is the conciliation judge together with the client. If there is no fee agreement between the attorney and the client (or if the agreement is invalid), the client and the adversary who has entered into a settlement agreement with the client are jointly and severally liable for the attorney’s fees stipulated in the final paragraph of Article 164 of the Attorney’s Act (the opposing party’s estimate must be made) and the attorney’s fee stipulated in Article 164/4 of the Attorney’s Act (to be paid by the client to the attorney).
In view of the specific dispute, the lawsuits pursued by the plaintiff in his capacity as an attorney and the enforcement proceedings, were concluded between the plaintiff’s client, Ülker Korkan, and the defendant pursuant to the protocol of the criminal court of peace dated 30.12.2010 and titled “Peace agreement mutual release document,” and it is understood that the parties entered into a settlement agreement for the amount of 5,500 TL. ,It must be accepted that the plaintiff has the right to collect the contractual attorney’s fee specified in Article 164/4 of the Attorney’s Act and the “opposing party’s attorney’s fee,” which is one of the litigation costs specified in the last paragraph of Article 164 of the same Act,
based on the amount awarded to the client by the settlement agreement of the criminal court of first instance. Accordingly, the subject of the attorney’s fee is the case file numbered 2006/519 of the Fethiye 1st Civil Court of First Instance, Fethiye 2nd Enforcement Directorate Case No. 2009/8277, and the settlement agreement between the parties, the attorney’s fee shall be calculated separately for each case based on the minimum fee schedule set forth in Article 164 of the Attorney’s Act, and shall not be less than the amount of 5,500 TL delivered by the plaintiff to his client in the main case file,
According to the article, the legal attorney’s fee shall be calculated as a contractual attorney’s fee between 10% and 20% of the amount, and according to the calculation to be made according to the Attorney’s Minimum Fee Schedule, the other Fethiye Enforcement attorney’s fee should be calculated in the 2010/2011 case file, while the contractual and counterclaim attorney’s fees should be calculated by the injured party according to the Minimum Fee. Although the Attorney’s Fee Schedule has been decided in writing with dissenting opinions, it is contrary to procedure and law and requires annulment.
CONCLUSION: For the reasons explained above, it was unanimously decided on 24.02.2014 to REVERSE the appealed judgment in favor of the defendant and to refund the advance fee upon request.