Complaining The Lawyer To The Bar Association Is Implicit Dismissal
13th Civil Chamber 2015/24960 E. , 2017/12297 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial of the debt lawsuit between the parties, the file was examined and discussed upon the appeal of the judgement given for the dismissal of the lawsuit for the reasons written in the judgement by the plaintiff’s lawyer within the time limit.
DECISION
The plaintiff claims that enforcement proceedings were initiated for seven promissory notes that he is a creditor of based on the power of attorney he gave to the defendant lawyer, that he handed over the opening costs of the files together with the security fee of 1.750,00 TL in accordance with the interim attachment decision taken for the file numbered 2009/5215 E. of the … 1st Execution Directorate, and 6.675,00 TL in accordance with the interim attachment decision taken for the file numbered 2009/6906 E. of the … 1st Execution Directorate.
Execution Directorate’s file numbered 2009/6906 E., the security amount of TL 6.675,00 was given by hand, the security amounts were taken back but not returned to him, … TL 500,00 collected from the file numbered 2008/981 E. of the 1st Execution Directorate on 13.02. 2009, he learnt from the debtor that the file was closed, when he was told about this situation, he wanted to prepare a release and sign it, but he did not accept it, thereupon he complained the defendant to the …
Bar Association and a disciplinary investigation was initiated against him, he claimed that although the defendant withdrew from all the files after the complaint, the payments made and the collateral costs were not returned, and on the condition that his rights regarding the excess are reserved, he claimed that the sum of the payments made to the defendant lawyer and the unreturned collateral costs, which is 8. 925,00 TL from the defendant, without prejudice to the right of redundancy.
The defendant claimed that he made expenses for the follow-up files, that the plaintiff collected from one of the execution files without his knowledge and waived without informing him, that the attorney fee was not paid even though the sales transactions were made in the file numbered 2009/5215 E. of the … 1st Execution Directorate, that the right of imprisonment was used to secure the receivables as an attorney due to the waiver without his knowledge and the non-payment of the attorney fee in the file where the sales transaction was made, and requested a decision to dismiss the lawsuit.
The court decided to dismiss the lawsuit; the judgement was appealed by the plaintiff.
1- The plaintiff has filed the present lawsuit for the return of the unpaid collection and security amounts due to the fact that the defendant lawyer learnt from the debtor of the file that the payment was made in the collection and closed follow-up file, and when this situation was notified to the defendant and the return of the collection and security amounts was requested, it was not accepted when he was asked to sign a release, and the defendant lawyer complained to the bar association and withdrew from the files.
The defendant, on the other hand, defended that the plaintiff used the right of imprisonment on the grounds that the plaintiff collected and waived in one of the follow-up files without his knowledge, the expenses incurred by him in the follow-up file and the attorney fee arising from another execution file that was sold was not paid, and the court decided to dismiss the case on the grounds that the plaintiff had the right of imprisonment on the amount to be returned. It is understood that the plaintiff implicitly dismissed the defendant by complaining to the bar association.
Although the court has decided on the basis of the expert report, the expert report is not suitable for inspection and the report was prepared with abstract justification. In this case, the court should take a new expert report and evaluate whether the defendant has used the right of imprisonment in accordance with the procedure and make a decision in accordance with the result, while deciding to dismiss the case on the grounds that the plaintiff has used the right of imprisonment based on the unjustified expert report requires reversal.
2-According to the reason for reversal, it is not deemed necessary to examine the plaintiff’s other appellate objections for the time being.
CONCLUSION:
For the reasons explained in subparagraph (1) above, the appealed decision is DISMISSED, for the reasons explained in subparagraph (2) above, it is not necessary to examine the other appellate objections of the plaintiff, the prepaid fee may be refunded upon request, and it was unanimously decided on 11/12/2017, with the decision correction path closed in accordance with Article 440/III-1 of the HUMK.
You can access our other article examples and petition examples by clicking here.