TC
high
GENERAL LAW BOARD
E. 2017/12-1147
K. 2017/1304
T. 8.11.2017 SUMMARY: The right to request a pledge right arises after one year has elapsed from the date of notification of the pay order. If the creditor does not request a pledge within a one-year period or does not withdraw the pledge request and does not request a pledge again within this one-year period, the follow-up file will be removed from the transaction. In this case, the tracking file is only removed from the process; otherwise, the execution tracking will not be dropped. By requesting renewal, he can request a pledge on the same tracking file.
If the creditor requests foreclosure within a one-year period, the fact that the debtor’s property has not been foreclosed within the same one-year period does not require that the right to request foreclosure be reduced and therefore the follow-up file be removed from the transaction. In this case, the request for foreclosure on the debtor’s property is not a renewal request.
The proxy creditor has requested that the debtors’ real estate and the debtor’s salary be foreclosed within a legal one-year period, but the creditor’s right to demand foreclosure has not been reduced. In this case, there is no need to notify the debtor of the renewal order in order for the creditor to request foreclosure again, and therefore no renewal fee is charged, and the creditor can request foreclosure directly without requesting a renewal.
ACTION: At the end of the trial conducted between the parties with the request of “cancellation of the civil service transaction through complaint”, the Decca Enforcement (Civil) Court dismissed the complaint at the request of the deputy complainant upon the review of the appeal against the decision of the Court of Cassation No. 12 on 10.07.2013 and 2013/2013 K. he has given a numbered decree. Law Office’s 05.12.2013 day and 2013/31165 E. on the day, 2013/38701 K. with his numbered decree,
“…The creditor’s right to request foreclosure shall expire after one year from the date of notification of the pay order (IIK art. 78/2.C.1). In this case, the tracking file is removed from the process (md.78/4) the creditor must submit a renewal request in order to request foreclosure, and this request must be notified to the debtor. 5 From the other side of the same article. in the paragraph; It is attached to the provision that a fee will be charged if a renewal request is made for follow-ups that are not based on confidentiality.
Example of a concrete event 7. The payment order was first notified by the creditor on 18.9.2009, the second on 30.9.2009, and the third by the creditor on 01.10.2009 on 10.3.2010, and the creditor’s right to “bankruptcy” did not decrease when the debtor and debtor requested the seizure of pay within one year on the date of the debtor’s assets on 26.05.2010. In this case, the FIRST 78/5 in order for the creditor to request foreclosure again.
according to the article, there is no need to notify the debtor of the renewal order and therefore collect the renewal fee. In other words, the creditor can make a direct foreclosure request without making a renewal request. THE SECOND is 110/3. in the article, it is stipulated that the creditor is responsible for expenses such as placement and retention of pledge rights. Since the regulation in question is not related to the renewal fee and the foreclosure claim period, there is no room for an application to be made in a concrete case.
Then it is not appropriate for the court to decide to reject the complaint when it should be accepted …”
At the end of the retrial, the court resisted the previous decision by overturning the grounds and sent the file to its former place.
After it was understood that the decision to resist was appealed in the examination conducted by the General Assembly of Law and the document in the file was read, the following issue was discussed:
DECISION : The request relates to the cancellation request through a complaint about the officer’s operation.
The representative of the complainant, enforcement proceedings against the debtors were initiated by the defendant at the Enforcement Office on 11.09.2009, and if the pay order was notified to all debtors who were not challenged within the specified period, the debtors should be followed up on the enforcement proceedings, but for any period specified in the relevant articles EBL File No. a decision was made regarding the cancellation of the 2004 foreclosure decisions, and in the first file issued on 22.04.2013, it was requested to renew the foreclosure transactions, and it was decided that the application and advance fee should be paid for the renewal process,
that the transaction made by the Borcka Enforcement Agency was unfair and contrary to public order, and the cancellation of the decision entitled “Decision Tensip Minutes” was requested in the 2009/921 follow-up file of the Borcka Enforcement Agency dated 22.04.2013. Upon complaint, it was decided to renew the file free of charge.
Subject to trial by the local court, the Enforcement Office of the creditor’s lawyer’s 2009/921 debt is owed on 10.03.2010, if the foreclosures numbered in the requested file and the debtors’ vehicles belonging to TK and with license plates 34 34 498 7400 were foreclosed in ZP on 11.04.2010, the creditor owes his lawyer on 26.05.2010 …’s salary if foreclosure is requested, any information that will be foreclosed and without a document valid in the file after this date, the creditor’s lawyer, if there is no demand on the file, if the vehicles have been foreclosed, according to the sales date of the vehicle,
it is not possible until 11.04.2011, if this request was not made by the entitlement date, the date corresponding to the acceptance of the order was removed because it fell on 11.04.2011. 12.12.2012 in the follow-up paid until the date of the file date, the file was cleared of any irregularities, no action was taken due to the fact that it had been processed for more than a year, the renewal of the deleted files was charged again if requested in accordance with the first provision 78/5, the decision of the Executive Office to reject the renewal request due to non-payment of the renewal fee was in accordance with the Law, it was decided to reject the complaint on the grounds that,
upon the objection of the representative of the complainant, the decision was overturned by the Directorate of the Special Department on the grounds stated in the title section above.
The court decided to resist by repeating the previous reasons.
An objection has been filed by the plaintiff’s attorney against the decision to resist.
A dispute that comes to the General Assembly of the Law through an appeal is the FIRST.of 78/2 and 4. it is resolved in accordance with the articles. after the legal obligation in the paragraphs (in case of a foreclosure request within one year from the notification of the pay order) is fulfilled, it is collected at the point where it is possible to remove the file from the transaction for other reasons.
As it is known, the creditor’s right to request foreclosure is subject to a one-year period. The right to request a lien arises when a one-year period has elapsed from the date of notification of the pay order to him. (78/2 of IIK. article C.1) If the creditor does not file a foreclosure request within this period or does not renounce the foreclosure request he has made within one year and does not file a foreclosure request again within this (same) one-year period, he has a one-year period (IIK 78/2. md.) The tracking file is removed from the process; otherwise, the execution tracking will not be dropped. In other words, the enforcement follow-up is ongoing. In this case, by requesting renewal, he can request foreclosure in the same follow-up file. (78/5 md.)
On the other hand, if the creditor has requested foreclosure within a one-year period, the fact that the debtor’s assets have not been foreclosed within the same one-year period (or even later) does not require that the right to foreclosure request be reduced and therefore the follow-up file be removed from the transaction. In this case, enforcement proceedings continue to be a problem, and the creditor’s request to foreclose on the debtor’s assets in accordance with the foreclosure request made within a one-year period (after one year has passed) is not a renewal request within the meaning of Article 78/5 of the Enforcement and Bankruptcy Code. In other words, in this case, the creditor does not need to pay fees again and notify the debtor of the request. (Dry B.: EI Book on Enforcement and Bankruptcy Law, 2013, 2. Edition, sh 414, 415).
In the concrete case, example 7 payment orders were notified to the first of the debtors on 18.9.2009, to the second on 30.9.2009, to the third on 01.10.2009, and the creditor’s representative requested that the debtor’s guarantees and the pay of the debtor be pledged within a one-year legal period, but the creditor’s right to demand a pledge right was not reduced. This case, the FIRST 78/5 in order for the creditor to claim the pledge right again. according to the article, there is no need to notify the debtor of the renewal order and therefore collect the renewal fee. In other words, the creditor can claim the right of pledge directly without requesting a renewal.
In this respect, it is contrary to the procedure and the law to resist the previous decision on the erroneous grounds that the decision to disrupt the Private Office issued by the local court and the General Assembly of Civil Law should be followed.
Therefore, the decision to resist must be overturned.
CONCLUSION : It was unanimously decided on 08.11.2017 that the decision of the complainant’s representative to resist the acceptance of objections was OVERTURNED for the reasons shown in the decision to disrupt the Private Office and, if requested, the objection advance fee was returned to the depositor, providing a clear way to correct the decision.