Summary:
In the residence objection: The value of an appropriate residence that the debtor can buy according to his social status should be determined through an expert witness, if this value is less than the value of the residence subject to the residence objection, the residence should be sold, the price required to buy a residence should be given to the debtor, the remaining price should be paid to the creditor.
In this case, it should also be decided to realize the sale at least by the amount that the borrower can buy a house according to his social status.
TC
High
General Assembly of Law
Original No.: 2013/659
Decision No:2014/252
K. Date:5.3.2014
(… In the enforcement proceedings initiated by the debtor claiming that his house is foreclosed, the FIRST.of 82. it is seen that he applied to the enforcement court with a request to cancel the foreclosure in accordance with the article, and the court decided to cancel the foreclosure.
SECOND. 82/12. according to the article, the borrower’s “suitable” house cannot be foreclosed. Whether a residence is suitable for the borrower’s situation is determined according to the social status of the person in question at the time of foreclosure and the needs of the borrower and his family. Here, the term “family” is in a broad sense and also covers dependents who live under the same roof as the borrower. The necessary price must be given by the enforcement court for the debtor to provide the necessary residence to accommodate with the above-mentioned ones, and the amount required for the residence, the qualifications of which are determined above the sale price, must be left to the debtor, the rest must be paid to the creditor.
Places that exceed these criteria, qualified and occupied places, places that cover rooms and halls that exceed reasonable dimensions, and places other than housing where there are mandatory items for residence are contrary to the purpose provided for in the article. The duty and title of the debtor does not require him to reside in a more magnificent residence than the one mentioned above.
In the concrete case, the court determined the value of the real estate in the expert report issued as a result of the discovery at the scene, but the borrower can buy a house that does not have luxury housing in the more modest districts of the city without determining the value, so the judgment was established based on the expert report.
Paying October 1, 2018, the court will do the work by obtaining an additional report from experts, the Tuzla district where the real estate is located, if the borrower is in a more modest place, he can enter a suitable house after determining that the determined sale price is less than the value of shame, the borrower himself has to enter a suitable house, the remaining price is paid to the creditor, if the borrower is not suitable to buy a house for less than the sale price, the written provision in the decision and the inspection report are incomplete and insufficient, it is inappropriate …)
The justification was overturned and the file was returned to its place, but at the end of the retrial, the court resisted the previous decision.
CLAIMANT: Counterparty-acting creditor
DECISION OF THE GENERAL ASSEMBLY OF LAW
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:
Demand, FIRST.of 82/12. it relates to the foreclosure complaint made due to residence in accordance with the article.
Plaintiff-debtor, in the enforcement proceedings initiated against him by the creditor, claiming that his house has been foreclosed, the FIRST.mad-desi is 82. in accordance with the article, he requested that the foreclosure be removed as required.
The opposing party-the creditor’s attorney, defended the dismissal of the case.
The court decided to cancel the foreclosure upon acceptance of the complaint due to the fact that the foreclosed home belonging to the debtor was a suitable residence and foreclosure could not be placed; upon the appeal of the counterparty-creditor proxy, the provision was overturned by the Special Department with the decision contained in the same text.
From the contents of the file and the evidence collected; Kadıköy 7. In the execution file of the Enforcement Directorate based on 2006/15265, creditor A.Huh. by, the borrower is mB. by Eagle 1.Business Mah.for receivables totaling TL 36,912.72 against sin
on 5.12.2006, enforcement proceedings were initiated with the decision dated 14.11.2006 and numbered 2006/7009, dated 2005/2006 and numbered 74, and the decision was based on; plaintiff A.Huh., defendant MB, the debtor of the executive order regarding the collection of labor receivables arising from the plaintiff’s work at the workplace M.’is. it is understood that it was notified on 07.12.2006, the follow-up was finalized and the real estate was foreclosed on on 31.07.2007.
82/12 of the Execution Bankruptcy Code of 2004. in the article; “Housing suitable for the condition of the debtor (but if the value of the housing is excessive, the amount that can be purchased according to the condition of the price is foreclosed, sold and left to the debtor.).” the provision is included and it is arranged that the appropriate household phenomenon will be determined by searching. In the reports submitted to the court, the value of the real estate subject to the lawsuit was determined, but the housing value that could be taken into account was not determined.
Pays payable to the debtor Oct. In this case, the court should determine, by obtaining an additional report from an expert, the appropriate housing price that the debtor can get at the location of the real estate located in the Tuzla district; if this value is less than the value of the foreclosed housing subject to the lawsuit, it should be decided that the foreclosed housing should be given to the debtor, paid to the creditor and the amount to be paid to the debtor should not be less than the cost of a suitable housing obtained from the sale of your house.
While the court’s decision to overturn must be followed for the reasons explained, resisting the previous decision is contrary to procedure and the law, and the decision to resist must be overturned.
result
provisional 3 of the Civil Procedure Code No. 6100. the provision of the article on the decision to overturn the Civil Procedure Code No. 6100 for the reasons specified in the decision to accept and resist the objection by the opposing party-creditor’s attorney, HUMK.taking into account the attribution of Article 429, in accordance with Article 366 of the Execution and Bankruptcy Code numbered 2004, in case of VIOLATION of the procedure, the objection advance shall be returned to the depositor upon request. According to the article, a unanimous decision was made on 05.03.2014 and it was attached to the provision that the way to correct the decision is open within 10 days from the notification.