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TC
high
GENERAL LEGAL COUNCIL
E. 2017/12-1147
K. 2017/1304
T. 8.11.2017
* REQUEST FOR CANCELLATION OF THE OFFICER’S TRANSACTION WITH A COMPLAINT (Creditor,
If He has Filed a Foreclosure Request Within the Annual Period, the Same One-Year Period
In Addition, the Debtor’s Goods Cannot Be Foreclosed When a Foreclosure Request is Made
Cancellation of the Right and Removal of the File from Processing
No Need – The Creditor’s Proxy Legally Obliges Debtors Within a One-Year Period
After Having Requested the Foreclosure of His Real Estate and the Borrower’s Salary,
Creditor’s Right to Request a Pledge /Renewal Fee
It is Not Necessary that a Direct Foreclosure Request Cannot be Made)
* RIGHT TO DEMAND PLEDGE (From the Following Source) Pay Order Notification Date
One Year Passes / The Creditor Makes Enforcement Proceedings Within One Year Period
It Does Not Make a Request Within One Year or Request for Enforcement Proceedings
If he does not Withdraw, If He Does not Request Enforcement Follow-Up Again, the Follow-up File Will Be Processed
Removal of the Debtor’s Assets Within a One-Year Period
Right to Claim Foreclosure The Fact that It Cannot be Foreclosed Foreclosure Claim
Does Not Require/Legally Requires To Request a Foreclosure Within a One-Year Period
There is No Need to Spend On Renovation and Foreclosure Can Be Requested Directly)
* FILING A FORECLOSURE REQUEST WITHIN ONE YEAR (The Same as One Year
The Debtor’s Assets Cannot Be Foreclosed Within the Period of Requesting Foreclosure
The Right to Request is Reduced and the File is Removed from Processing
Does Not Require – The Creditor’s Proxy Legally Obliges Debtors Within a One-Year Period
After Demanding the Foreclosure of His Real Estate and the Borrower’s Salary
The Creditor Does Not Have the Right to Demand a Pledge Because the Lien Is Requested Within a Legal One-Year Period
There is No Need to Spend the Renewal Fee Directly
A Lien May Be Requested)
RENEWAL FEE (The Creditor May Demand a Pledge Within a One-Year Period If the Debtor’s Assets Demand a Pledge Within the Same One-Year Period
Loss of the Right to Demand a Pledge and Inability to Place a Lien
The Fact that the File Does not Require to be Removed from the Transaction / The Assets of the Debtor
A Foreclosure Request Is Not a Renewal Request –
A Pledge Has Been Requested Within a Legal One-Year Period, But the Creditor
The Right to Request a Pledge has Not been Reduced / Renewal Order
SUMMARY: The right to demand a pledge is one year from the date of notification of the pay order
passes. If the creditor does not request a pledge within a one-year period
or, if the request is not made, we can withdraw the foreclosure request within this one-year period and perform the foreclosure process again, the tracking file is removed from the process. In this case, the follow-up
his file is only removed from the process; otherwise, the execution tracking will not be dropped.
Restoration, he can request a lien by making a request in the same follow-up file.
If the creditor has requested foreclosure within a one-year period,
the same one-year failure to place a lien on the borrower’s property within the time limit, the lien
cancellation of the right and therefore removal of the tracking file from the process
does not require. In this case, the debtor is asked to place a lien on his property,
this is not a renewal request.
The proxy creditor is responsible for the management of the debtor’s real estate and
by demanding the lien of the debtor’s salary, the creditor does not demand the lien,
this is not his right. In this case, in order for the creditor to be able to request foreclosure again,
notification of the renewal order to the borrower and therefore receipt of the renewal fee
without the need for direct foreclosure and without the creditor’s request for renewal
he might want to.
LAWSUIT:
“Cancellation of the officer process Dec complaint” between the parties
at the end of the trial, the request, Debenture Execution (Law)
Court, 10.07.2013 day and 2013/2 E.,
2013/12 K. the objection made against the numbered decision by the attorney of the complainant
, Supreme Court 12. Law Office, 05.12.2013 day and
2013/31165 E., 2013/38701 K. by the numbered decision,
“…The creditor’s right to demand foreclosure, from the date of notification of the pay order, is
it falls with the passage of a year (IIK.C.article 78/2 of 1). In this case, the tracking file
(m.78/4) in order for the creditor to request a pledge since it will be removed from the transaction
he must submit a renewal request and this request must be notified to the borrower. Other
The same substance from the side. in the paragraph; in the undisclosed follow-ups
it is stipulated that a fee will be charged upon renewal request.
In the concrete case, sample pay order No. to the first of the 7 debtors
it was issued on 18.9.2009, the second on 30.9.2009, the third on 01.10.2009 and,
it was notified by the creditor on 10.3.2010 and on 26.05.2010, and the creditor’s
by requesting the collection of the debtors’ immovable property and the debtor’s salary through foreclosure on the date of the notification, that is, within a legal one-year period, the creditor’s “right is not reduced
it is necessary to request its collection through foreclosure” .
In this case, the creditor may request foreclosure again for IIK 78/5. According to the article, the renewal order has been notified to the debtor and therefore there is no need to charge a renewal fee. In other words, the creditor can make a direct foreclosure request without requesting a renewal. SECOND. 110/3. it is stipulated in the article that the creditor is responsible for expenses such as placement and storage of the lien. Since the renewal of the said arrangement is not related to the fee and foreclosure claim period, there is no place for the application in the concrete case. In this case, the court should accept the complaint and decide to reject it, this is not true …” instead of destroying the file on the grounds that it was rejected at the end of the trial, the court resisted the previous decision.
After the appeal, the information was understood and the documents in the file were read by the General Assembly within the period of the decision to resist by examining the law, I was called for an interview: DECISION: The request relates to the request for cancellation of the officer’s transaction through a complaint.
The acting representative of the complainant is in the Enforcement Directorate about the debtors who complained on 11.09.2009, enforcement proceedings were initiated without a warrant, the pay order was notified to all debtors, since there was no objection during the period when the follow-up was finalized, many enforcement proceedings were conducted against the debtors, but since the foreclosure process was not performed within the period specified in the relevant articles of the 2004 IIK in the file, it was decided to remove the foreclosures issued on 22.04.2013, and although the foreclosure process was requested by petition, the file must first be updated, and, it was decided that the application and advance fee should be paid for the renewal, that the transaction made by the Borcka Enforcement Office was unfair and that public order would be disrupted.
No. 2009/921 of the Borcka Executive Department Directorate,
from the file dated 22.04.2013 entitled “Decision Tensip Minutes”, which constitutes a violation of the decision
annulment of the decision on the grounds of,
it has been decided to renew the file requested by the complaint without charge.
In the follow-up file of the Borcka Enforcement Department numbered 2009/921, the subject of the lawsuit filed by the Local Court on 10.03.2010,
the creditor’s representative has requested foreclosure,
in addition, the vehicles with 34 TK October 498 and 34 ZP 7400 plates belonging to the debtors are also
it was foreclosed on on 11.04.2010, upon which the creditor’s proxy
despite the fact that the debtor requested that a lien be placed on his salary on 26.05.2010
there is no information and documents in the file indicating that this foreclosure has been applied,
after this date, the creditor’s representative does not have any requests in the file,
according to the foreclosure date of the vehicles, the date of sale of the vehicles is 11.04.2011,
making a request as much as possible,
filing a foreclosure request by this date, since it has not yet been accepted, if the foreclosure has fallen on this date, as of 11.04.2011, when the foreclosure fell, the file has passed for more than a year since 12.12.2012
if the file removed from the treatment is requested to be renewed, paid again in accordance with the provision of Article 78/5, the renewal request is rejected by the Enforcement Agency due to non-payment of the renewal fee, the decision to reject the complaint on the grounds that the transaction is in accordance with the law , the decision made by the Special Department upon the objection of the complainant’s attorney is overturned on the grounds described in the title section above. The decision to resist the court was made by repeating the previous reasons.
An objection has been filed by the plaintiff’s attorney against the decision to resist.
The dispute arising from resisting the General Assembly of the Law is 78/2 of the OIC. article and 4. the legal obligation in the paragraphs (a) if a foreclosure request has been filed within the year
after the payment order is fulfilled (from the notification ), the other one ends at the point where the file cannot be removed from the tracking for the reasons paid. As it is known, the creditor’s right to demand foreclosure is subject to a one-year period. The right to request a lien shall expire one year after the notification of the pay order. (78/2 of IIK. article C.1)
The creditor has a one-year term (IIK 78/2. md.) does not file a foreclosure request or file a foreclosure request (which it will do within one year) and if you get it back, it will not file a foreclosure request again within the one-year period if the tracking file has been removed from the transaction (the same). (78/4 md.) this case, the tracking file is only removed from the process; otherwise, the execution tracking will not be dropped. In other words, the enforcement follow-up is where it stays the most.
In this case, by requesting renewal, he can also request foreclosure on the follow-up file in the same way. (78/5 md.) In contrast, if the creditor has requested foreclosure within a one-year period, the inability to foreclose on the debtor’s assets within the same one-year period (or even later) reduces the right to request foreclosure, and therefore the follow-up does not require the file to be removed from the transaction.
In this case, the last part of the enforcement proceedings remains to be performed, and if the creditor has reclaimed the debtor’s assets through foreclosure within a one-year period (after one year has passed) according to the foreclosure request, it is 78/5 of the Enforcement and Bankruptcy Code. there is no request for renewal in the sense of the article. Paid payback is therefore required by the creditor in this case and there is no need to pay it and to notify the debtor of the request. (Dry B.: EI Law Book on Execution and Bankruptcy, 2013, 2. Edition, sh 414, 415).
In a concrete case, on 18.9.2009, the first of the debtors was notified of the 7 payment order on 30.9.2009, the second on 01.10.2009 and the third on 01.10.2009, and the creditor’s lawyer notified the debtors requesting the foreclosure of their real estate and the payee’s salary within a legal one-year period, the creditor has no right to request foreclosure. In this case, the creditor is obliged according to Article 78/5 of the OIC to request foreclosure againthe renewal order must be notified and therefore the renewal fee must be charged
there is no. That is, without the creditor requesting a renewal
he can file a foreclosure claim directly.
For this reason, the law adopted by the local court and the General Assembly
Resisting the decision when the decision to demolish the Private Apartment should be followed with the previous one
it is against the procedure and the law.
Therefore, the decision to resist must be overturned.
CONCLUSION:
The decision of the complainant’s representative to resist the acceptance of objections
For the reasons shown in the decision to demolish the Private Apartment,
if requested, the objection should be returned to the depositor of the advance fee, correction of the decision
it was decided unanimously on 08.11.2017 to open the road.