T.C.
SUPREME
12. law office
Mainly No:2017/8109
Decision No:2017/14735
Date of Decision: 28.11.2017
COMPENSATION CASE – YOUR OBJECTION TO THE NOTICE OF FORECLOSURE BECOMES A REALITY
VIOLATION OF THE LAW – AS OF THE DATE OF APPEAL AGAINST THE NOTICE OF FORECLOSURE
A RECEIVABLE OF THE DEBTOR BORN TO THIRD PARTIES
– THE APPEAL IS NOT UNFAIR – THE DECISION TO DISMISS THE CASE
SHOULD BE CHANGED
ABSTRACT: As of the date of appeal against the notified lien notice, the debtor does not have a receivable arising from third parties. As of the October of the appeal, the case for termination of the contract filed for the effective termination of the construction contract and the additional contract for the floor provision is still pending. As of the date of appeal, the appeal of third parties is not unjustified. In the determination made by the court, it cannot be determined that the debtor has a receivable born to third parties as of the date of appeal of the foreclosure notice, while it is necessary to decide on the rejection of the case, the provision for the acceptance of the case with a written justification is incorrect.
(2004 P. K. m. 68, 89)
Above date and number of examination by the defendant within hours of the court’s decision in writing upon request temyizen this work-related files from the scene have been sent to the apartment and rested for the audit report to file a claim held by a judge, and all the documents in the file is read and analysed, after it was thought that the nature of the business discussed:
By the creditor, the defendant, who is in the position of the third person, is entitled to 89/1 of the IIK. 89/4 of the IIK, arguing that the objection he made during his term against the foreclosure notice sent in accordance with the article is contrary to the truth. 72.350,00, where compensation is requested in accordance with the article, requested by the court with the acceptance of the case on the grounds that the debtor is a creditor from the defendants due to the cost of production
It is seen that TL compensation was taken from the defendants and it was decided to be given to the plaintiff. IIK 89/4. in its article; “If a third party objects to a foreclosure notice within the time limit, the creditor shall prove in the executive court that the third party’s answer is otherwise than the third party’s 338. article 1. he may request to be punished in accordance with the provision of the paragraph, and also to be sentenced to compensation. The executive court handles the case on compensation in accordance with the general provisions”regulation is included. The subject of the compensation provided for by the law is the damage suffered by the follow-up creditor due to the fact that a third party has made a statement contrary to the truth against the foreclosure notice. In this case
the plaintiff and his creditor must prove that the third party has made a statement contrary to the truth. Contrary to the declaration of the third party, Article 68 of the IIK. it can be proved by any evidence, regardless of the documents listed in the article. In accordance with the express provision of the said article, the conclusion should be reached by conducting a trial by the executive court in accordance with the general provisions.
In the concrete case, the defendant is 89/1 by third parties. lien dated 13.03.2009 appeal made within the notice period; held between the borrower pursuant to the construction contract for floors, stoppage of the contractor of finishing the construction started with the capacity of the debtor, and the debtor additional contract held between the deadline in spite of, the borrower arising from the contract due to failure to fulfill 3 of the act against the debtor. 2008/181 E of the Court of First Instance. in its numbered file, it is understood that a lawsuit has been filed for the retroactive termination of contracts and this case is still ongoing, they object that the borrower does not have rights and receivables from them because he does not fulfill his contractual obligations. Arranged between the debtor and the Decedents … 6. 06.05.2004 of the notary public and the sale of immovable property in the form of editing and the promise of journal No. 17179 times due to the construction contract for the contractor to give additional time to the debtor with additional contract dated 18.07.2016 Journal No. held 30776;”the construction period the contractor doesn’t deliver himself since additional time is given in 15.06.2007 until the date of this agreement that are valid given the conditions of the main contract, this time in spite of
it is understood that the contractor will not claim any rights and receivables from the works he has done so far and from this real estate if the construction is completed and not delivered except for force majeure. Filed by the defendants for termination of contracts against the debtor … 3. 2008/181 E of the Court of First Instance. according to the Decision2009/562 of 29.11.2012, which is given in the numbered file, the parties
with the Promise of Real estate Sales and the Construction Contract for the Floor, dated 18.07.2006 and numbered 30676 evmiye
the additional agreement in the form of regulation has been decided to be terminated retroactively, this decision was made on October 02, 2013
it is seen that it has been finalized in its history.
89/4 of the IIK for the benefit of the creditor of the court. in order for compensation to be ruled on the basis of the article; The unfairness of the appeal to the foreclosure notice must be proven by the creditor. As of the date of notification of the debtor’s foreclosure notice to the third party, a financially desirable receivable must be found with the third party. Liability of the third party of the notice of foreclosure
it is limited to the current actual situation at the time of its receipt. 89/1 of the IIK. as of the date of appeal against the notice of foreclosure notified in accordance with the article, the debtor does not have a receivable arising from third parties. As of the date of appeal, the floor equivalent construction
the case for termination of the contract filed for the effective termination of his contract and the October agreement is still pending. As of the date of appeal, the appeal of third parties is not unjustified. In the determination made by the court, 89/1. as of the date of appeal against the notice of foreclosure, it cannot be determined that the borrower has a receivable born to third parties, so it is necessary to decide on the dismissal of the case, while the provision for the acceptance of the case with a written justification is incorrect.
Conclusion: The adoption of the defendants’ appeals and the court’s decision for the reasons written above are in accordance with Article 366 of the IIK and Article 428 of the HUMK. in accordance with the articles, it was decided unanimously on 28.11.2017 to CANCEL it, to return the fee received in advance upon request, with a clear way to correct the decision within 10 days from the notification of the notification.
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