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ANTALYA COURT OF FIRST INSTANCE
FILE NO :….. E.
DEFENDANT : ………. A.Ş.
ATTORNEYS : ………..
THE PLAINTIFF : ………
SUBJECT : Objections to the expert report dated 05.12.2021 and submission of our statements.
EXPLANATIONS :
In order to collect the receivable of the client bank from the deceased ………., Antalya…. Execution Directorate’s ……. E. With the file numbered E., proceedings have been initiated. In the case of rejection of the inheritance filed with this insolvency claim, the debtor belongs to the deceased ………., …… province, ………, ………. Neighbourhood, ……Ada …. and …. The report on the valuation of the immovables with parcel number was notified to us on 04.01.2022.
We submit our declarations and objections to the expert report within the period.
In summary in the expert report;
The North Front of the subject immovable parcel …….. faces the street ……, the South Front of the subject immovable parcel ……… faces the street …………. It is an area with storey residential style buildings. The immovable is located in the bazaar within walking distance to the ………… district City Centre. Infrastructure services of the region are fully utilised. The subject immovables are located 100 m as the crow flies from the ……… Municipality Building.
……….. The cost of the parcel numbered land is 30.820,00 TL on the date of the lawsuit
………. two-storey wooden house and barn and land cost 310.852,50 TL on the date of the lawsuit
The total value on the date of the lawsuit is 341.672,50 TL.
The above-mentioned immovable property, which has been appraised, is located on a busy street in terms of vehicles in the central bazaar of the district. For this reason, it is thought that the immovable has a higher value than determined.
As it can be understood from the expert report, the estate is not insolvent. There are assets of the deceased. Therefore, this case should be dismissed in accordance with the relevant records.
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In addition, since the heirs who reject the inheritance will be liable to the creditors of the deceased to the extent of the value of the movable, immovable and cash money that they received from the deceased within 5 years before the death of the deceased and that they are obliged to return in the division of the inheritance; it is also necessary to investigate whether there is a transfer of real estate, movable and cash money that the plaintiffs received from the inheritance within 5 years before the death of the deceased and whether there is any behaviour of the plaintiffs after the death of the deceased that means acceptance of the inheritance of the deceased.
23rd Civil Chamber of the Court of Cassation 29.05.2019 T. E: 2018/1018, K: 2436; “Pursuant to Article 610/2 of the TCC, the heir who intervenes in the transactions of the estate as an heir before the expiry of the refusal period, who performs works that are not in the nature of ordinary management of the estate and are not necessary for the execution of the affairs of the heir, or who conceals or appropriates the estate property, cannot refuse the inheritance. As it is understood from the text of the article, the legislator has regulated that the excessive involvement of one of the heirs in the affairs of the estate will mean implicit acceptance of the inheritance and the right of refusal will cease for this heir, just as in the case of explicit acceptance. For the reasons explained above, an heir cannot request a judicial refusal after he/she has definitively accepted the inheritance and made the above-mentioned disposals.”
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Likewise, the law stipulates a three-month period of ineligibility for the rejection of the inheritance. Accordingly, the heir must request the rejection of the inheritance within a period of three months from the death of the heir or from the time the heir learns that he is the heir. The inheritance not rejected within this period is deemed to have been acquired.
On the other hand, the request for the client bank to be sentenced to litigation costs and attorney fees is also against the law. Because, whether the estate is insolvent and/or whether the plaintiff can reject the inheritance will be determined at the end of the trial, and the client bank, which did not cause the lawsuit to be filed regardless of the decision to be ruled, should not be sentenced to trial expenses and attorney fees. (14th HD. 19.06.2018 T. E: 2016/9581, K: 4658 – 14. HD. 05.06.2018 T. E: 2017/6075, K: 4450)
CONCLUSION AND REQUEST :
For the reasons explained above and to be considered ex officio by the Honourable Court; we respectfully submit our request for the dismissal of the unfair lawsuit and the decision to impose the trial expenses and attorney fees on the plaintiff.17.01.2022
…………. A.S. Attorneys
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