Law Office
Case Number: 2016/12372
Decision Number: 2018/4208
“Text of Justice”
COURT: FAMILY COURT
Following the court’s decision in the case for the cancellation of the objection between the parties, upon the defendant’s objection made within the period for accepting the case; after the acceptance of the objection petition, the documents in the file were examined and the necessary evaluations were made:
COURT OF APPEALS
The plaintiff declares that they divorced the defendant and that the court ruled that the defendant be paid monthly alimony of 3,000.00 TL in accordance with the protocol approved by the court. With the request for alimony collection for the months of 2010 and 03/05-06/2013… Anadolu 24th Enforcement Directorate initiated enforcement proceedings against him with file number 2013/17558 and filed a lawsuit for the cancellation of the most requested part of the enforcement order.
Anadolu 5th Enforcement Court, with its decision numbered 2014/50, with its decision numbered 2013/598, stating that the amount sent by transfer was not specified as alimony, that the entire amount had to be paid with the condition of enforcement, and that the plaintiff had therefore unjustly enriched himself, and this time ruled to collect the additional 9,925.00 TL paid to the defendant. … Proceedings were initiated against the defendant through the invalid enforcement of the 2014/19570 file of the 22nd Enforcement Directorate of Anatolia. The defendant claimed that the case was initiated during the appeal stage,
objected to the appeal application, and requested that the case be dismissed.
The court accepted the case and the defendant-debtor… T he defendant appealed in time against the ruling to cancel the objection to file no. 2014/19570 of the Anatolia 22nd Enforcement Directorate, to continue the proceedings, and to collect at least 20% of the claim from the defendant.
lass=”yoast-text-mark” />>The case concerns a claim for the annulment of an objection to an invalid enforcement proceeding, initiated against the alimony creditor on the grounds of unjust enrichment, alleging that the alimony creditor made duplicate alimony payments.
1)
Considering the items in the file, the evidence on which the decision is based, and the legally required justifications, and especially considering that there is no error in the evaluation of the evidence, the defendant’s other objections outside the scope of the following paragraph should be rejected.
2)
As a concrete contradiction, the plaintiff claimed that the alimony debt had been paid repeatedly, while the defendant argued that the amount transferred to him through the bank was not in lieu of alimony.
It is mandatory for payment documents to clearly specify which debt is being paid. However, the receipt in the file does not contain any explanation regarding the transfer made by the plaintiff.
However, it should be noted that, as a rule, a transfer is a method of payment and indicates that an existing debt has been paid. The person sending the transfer must prove the contrary of the stated assumption. In this case, the burden of proving the debt relationship lies with the plaintiff.
The money transfer receipt relied upon by the plaintiff as evidence does not contain an explanation as to why the money was sent and, as stated above, is not sufficient to conclude that it was sent solely for the purpose of paying the alimony debt. Therefore, the receipt in question is not sufficient to prove the claim and cannot be accepted as the basis for written evidence.
In this context, since the Court failed to prove that the amount sent to the defendant via money transfer was sent to be deducted from the accumulated alimony debt, the decision to accept the case, as stated above, is incorrect due to an erroneous assessment; the case should be dismissed, and the decision should be reversed.
3) According to the acceptance; Regarding the defendant’s objections to the enforcement rejection compensation;
Even though enforcement refusal compensation was awarded against the defendant; since the existence and amount of the claim subject to the appeal for cancellation can be determined through litigation, it was incorrect to accept the claim as liquid and award enforcement refusal compensation pursuant to Article 67 of the European Insolvency Law, and this matter required the decision to be overturned.
CONCLUSION: For the reasons explained in the first paragraph above, the defendant’s other objection request was REJECTED, and for the reasons explained in the second and third paragraphs, a decision was made unanimously on 04/18/2018, pursuant to Article 440 of the European Insolvency Law No. 1086, without the possibility of correction.