ANTALYA 6TH EXECUTIVE LAW COURT JUDGE
DEFENDANT : ……….
ATTORNEY : Att. ……….
THE PLAINTIFF :……….
ATTORNEY : Att………….
SUBJECT : Submission of our reply petition.
EXPLANATIONS :
Pursuant to the attached power of attorney and authorisation certificate………… We are the attorneys. (Annex-Power of Attorney and Authorisation Certificate)
The plaintiff party summarised in the complaint petition;
“Antalya Bank Receivables Enforcement Office ……. In accordance with 21/1 of the notification of the payment order, the neighbour was asked due to the absence of the addressee at the address, and since the name of the neighbour asked was not written in the report, the date of notification was determined as ……….. on the grounds that the notification was irregular”.
Pursuant to the Banking Service Agreement signed and issued between the deceased and the client bank, credit card numbered ………., single account numbered ……….. and support loan numbered ……… were opened and utilised to the other party.
Since the deceased did not pay the debt arising from the use of the said loan and did not fulfil his obligations arising from the agreements, his account was cancelled and notices of default and overdue notices were sent.
Upon failure to pay the debt in due time, an execution proceeding was attempted to be initiated against the deceased, but it was learnt that he passed away on ………
Subsequently, on ………., Antalya 2nd Civil Court of Peace ………. A certificate of inheritance was obtained with the file numbered ………… and proceedings were initiated against the plaintiff …………, who is the legal heir, with the file numbered ………Esas of Antalya ……… Enforcement Office.
The payment order was notified on ……… and the other party objected to the debt with the petition dated …….
First of all, this lawsuit is against the procedure and merits and should be rejected. Namely
OUR PROCEDURAL OBJECTIONS:
The closed notification of the payment order was prepared by the enforcement office on ……… and notified on ………..
The legal basis of the claim of irregularity of the notification of the payment order is Article 16 of the BEC, and the complaint in this respect must be made to the enforcement court within 7 days from the date of learning of the irregular notification process in accordance with paragraph 1 of the same article.
“Article 16 of the EBL – (Amended: 3/7/1940-3890/1 Art.)
Except for the matters that the law leaves to the court to resolve, a complaint may be made to the enforcement court about the actions taken by the Enforcement and Bankruptcy Offices due to the fact that they are contrary to the law or not in accordance with the facts. The complaint shall be filed within seven days from the date of learning of these transactions.”
Objection period is 7 days from the date of learning of the irregular notification. The notification was served on the date of ………. and no objection was made in due time and the date of this lawsuit is ………..
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“12TH HD. 05.11.2012 T. 14953/31384
…In the execution proceeding without judgement through general attachment, the debtor is obliged to notify his objection to the enforcement office within seven days from the date of notification of the payment order by petition or orally, pursuant to Article 62/1 of the EBL. The objection period is seven days from the date of notification of the payment order and the debtor is obliged to notify the enforcement office by petition or orally.”
“Court of Cassation Decision – 12th HD, E. 2018/243 K. 2018/11605 T. 15.11.2018
… …the complaint of irregular notification; In accordance with Article 32 of the Notification Law, the debtor should apply to the enforcement court on 04.09.2015, after the legal 7-day period stipulated in Article 16/1 of the EBL, although the debtor reported that he was informed of the notification on 21/8/2015, he filed a complaint to the enforcement court on 04.09.2015.
In that case, while the court should decide to reject the complaint due to out of time, it is inappropriate to establish a written judgement by examining the merits of the matter.”
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Moreover, the date of learning of the execution proceedings can be seen from e-government, Uyap Citizen Portal channels. The UYAP log records the read information and the periods starting with “learning” begin to run. We request an investigation at the discretion of your court.
“Konya Regional Court of Justice 7th Civil Chamber 2020/90 E, 2020/141 K. YD. 12th HD 2020/4270 E. 2020/6852 K.
In the examination of the record of the execution proceeding file on UYAP; When the document transaction log of the document regarding the seizure of the immovable (registered under the name of “Immovable Information Document” dated 17.07.2018) is examined, it is understood that the complainant debtor Hasan A..I. was aware of the follow-up file subject to the complaint as of 26.02.2019 according to the official records on UYAP, but applied to the execution court for this complaint on 24.04.2019 after the 7-day period had elapsed, and it was concluded that the complaint should be rejected by our office for the forfeiture period. ”
OUR OBJECTIONS ON THE MERITS:
” Article 21 – (Amended: 6/6/1985 – 3220/7 Art. ) If the person to whom the notification is to be made or none of the persons to whom notification may be made pursuant to the above articles is not present at the address shown or refuses to be notified, the notification officer shall serve the documents to be notified, The headman or one of the members of the council of elders of that place or the chief or officers of the police force shall deliver the notice containing the address of the receiver to the door of the building at the address shown, and in case of absence at the address, the person to be notified shall be notified to one of the nearest neighbours, if possible, and to the manager or doorman, if any. The date the notice is affixed to the door shall be deemed as the date of notification. ”
The payment order was served to the address known to us, which is also the Mernis address, in accordance with the provision of Article 10, “Notification shall be made to the person to be notified at his last known address.”
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Address shown is the address of the addressee in the address registration system, and even if the addressee has never lived at that address or has permanently left that address, the notification officer delivers the document to be notified to one of the headman or one of the members of the council of elders of that place or to the chief or officers of the police department against signature and affixes the notice containing the address of the receiver to the door of the building at the address shown.
The date the notice is affixed to the door shall be deemed as the date of notification. As can be understood from the wording of the article, it is necessary to notify the situation to one of the nearest neighbours, if any, to the manager or janitor, but since the notification is to the mukhtar, the name of the neighbours is not required to be included in the notification.
It is also seen in the notification warrant subject to the case before us that the document has been notified to the mukhtar and the name, surname and seal of the mukhtar are present. For these reasons explained, the notification has been made in accordance with the notification law 21/1 and there is no irregularity.
EVIDENCE : Antalya ……….. Execution Office……… Esas numbered file and all other evidence
LEGAL GROUNDS : EBL and any other legal legislation
CONCLUSION AND REQUEST :
For all the reasons explained above;
The unfair and groundless lawsuit is firstly rejected procedurally, otherwise it is rejected on the merits,
We submit our request for a decision to charge the attorney fee and judgement expenses to the plaintiff.
Yours sincerely.
Attorneys
………………..
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