Request For Removal Of Seizure
T.C JUDGMENT
21st Civil Chamber
Main: 2018/ 613
Decision: 2019 / 262
Decision Date: 21.01.2019
Case: A) Plaintiff’s Request:
The plaintiff claimed that the notification of the payment order was irregular, that the execution proceedings initiated against him should be stopped and that the attachment placed on his real estate should be removed.
B) Defendant Response:
The Defendant Institution’s attorney stated that the debts subject to the execution proceedings do not belong to …Kargo, the workplace file numbered 2 5224 03 03 03 1010713 034 05-35 of the execution proceedings based on the sale is registered in the name of the plaintiff, the said proceedings have been finalized, there is no violation of the law in the seizure imposed, the competent courts to hear the case are Istanbul Labor Courts, for this reason, the lawsuit filed for lack of jurisdiction and the decision to be dismissed on the merits.
C) Reasoning and Decision of the Court of First Instance:
The Court decided; “In line with the scope of the entire file and the expert committee report, it was decided to reject the request of the Plaintiff Debtor’s attorney to remove the attachment, to sell the immovable subject to the case not less than 200.000 TL and to give 160.000 TL from the sale price to the debtor so that he can buy a house suitable for his condition, and to use the remaining part to pay the debt”.
Appeal application: In the petition of appeal, the plaintiff’s attorney applied for an appeal on the grounds that there are 2 separate expert reports in the file, the values appraised in the report dated 24/03/2013 and the report dated 30/11/2015 are different, this contradiction between the reports should be eliminated, the expert reports are not reports suitable for decision-making, the decision of the 10th Civil Chamber of the Court of Cassation dated 27/12/2013 and numbered 2013/18657 Esas, 2013/2608 Decision and the file should be examined, and the decision of the court of first instance should be reversed and the case should be accepted.
In his petition, the defendant SSI attorney applied for appeal on the grounds that there are 2 expert reports in the file, there is a contradiction between the reports, the value is shown low, the expert report is insufficient, the decision should be examined and decided to be rejected completely.
D) Decision and Reasoning of the Regional Court of Appeal:
The Regional Court of Appeals unanimously decided to “dismiss the appeal requests of the plaintiff’s attorney and the defendant institution’s attorney on the grounds that ‘the decision rendered by the court of first instance on the basis of the expert report stating that the plaintiff can buy a house in a similar neighborhood and nature with a price of 160.000,00 TL is in accordance with the procedure and law’.
E) Appeal: Reasons for appeal of the defendant SSI:
-The expert report is not sufficient to establish a verdict,
-that the value of the seized immovable is excessive,
-The structural features of the immovable property were determined to be only 200.000 TL without taking into account many situations such as zoning status,
The criteria according to which it was determined that it could buy an immovable property for -160.000 TL were not examined in the report, and the determination was made with abstract statements,
-Suggested that the deficiencies in the additional report were not eliminated and requested the decision to be reversed.
Reasons for the plaintiff’s appeal: -There is a contradiction between the expert reports and the decision was made without eliminating this contradiction and objection to the report. It was declared by the experts that the real estate could be worth between 125.000 TL – 135.000 TL – In the other expert report, the value of the house was shown very high. Although we submitted the precedent house prices with documents and objected to this expert report, our request to have another expert examine the house again was rejected by the court without justification.- … The 9th Civil Chamber of the Court of Cassation, upon a conflict of jurisdiction in the proceedings held in the 17th Labor Court’s file numbered 2013/1086 E, with its decision dated 12/04/2016 and 2016/12171 E. 2016/9049 K., ruled that the agency relationship between the plaintiff … and the employer … Kargo A.Ş. was collusive and that the plaintiff was the defendant’s employee and determined that the plaintiff was not the employer.- Considering the plaintiff’s family structure, education status of his children, workplace and school status, a decision should be made to remove the attachment on the immovable property. The plaintiff claimed that the decision of the local court and the Regional Court of Appeal should be reversed.
F) Evaluation of Evidence and Reasoning:
1-According to the writings in the file, the collected evidence, and the reasons for the judgment, the plaintiff’s other objections of appeal other than those covered by the following paragraph are rejected
2-The case is related to the request for the removal of real estate seizure.
From the records and documents in the file; The payment order numbered 2008/11999 and dated 08.04.2008 and numbered 16883 for the period 2007/5-2008/1 was notified to the plaintiff on 14/04/2008, the real estate subject to the lawsuit was seized on 01.12.2008 due to the payment orders numbered 2008/14867 and 2008/14868 regarding the debts for the period 2008/4-8 with the seizure notice dated 24.11.2008 and document number 57108. It is understood that the real estate subject to the lawsuit was seized on 01.12.2008 with the journal number 21269, that the plaintiff was not notified about the seizure, that an appraisal was made by the institution on 22.11.2012 regarding the immovable property and that the real estate sale announcement dated 09/01/2013 by the …Social Security Provincial Directorate … Execution Sales Unit regarding the 1st Sale Day and 2nd Sale Day was notified to the plaintiff’s spouse on 09/01/2013 and that the lawsuit was filed on 14/01/2014.
In order for the seizure to be carried out, a proceeding carried out in accordance with the provisions of Law No. 6183 and a payment order must be duly notified. In other words, there must be a finalized enforcement proceeding against the plaintiff. In the concrete case; the plaintiff was notified of the payment order numbered 2008/11999 for the period 2007/5-2008/1, but with the real estate attachment notice dated 24.11.2008 and document number 57108, it is understood that the payment orders numbered 2008/14867 and 2008/14868 regarding the debts for the period 2008/4-8 were seized, and according to the documents in the file, it is understood that the payment order notified to the plaintiff and the payment order subject to seizure are different.
The work to be done consists of requesting the documents regarding the service of the payment orders numbered 2008/14867 and 2008/14868 in the attachment notice from the defendant institution, asking for which payment orders the attachment was placed, investigating the validity of the real estate attachment and deciding according to the result.
Therefore, without taking these material and legal facts into consideration, the decision of the Regional Court of Appeal to reject the parties’ appeal application on the merits as a result of incomplete examination and research is contrary to the procedure and the law, and the decision of the Regional Court of Appeal, which has been appealed, should be DISMISSED for the reason written above, and the decision of the first instance court should be reversed.
G) Conclusion: It was unanimously decided on 21.01.2019 that the appealed Regional Court of Appeal decision should be (REMOVED) in accordance with Articles 373/1 of the CCP No. 6100 for the reasons written above, the decision of the court of first instance should be REVERSED for the reason stated above, the appeal of the Institution should not be examined for the time being according to the reason for reversal, the file should be sent to the court of first instance and a copy of the decision should be sent to the Regional Court of Appeal, and the appeal fee should be returned to the appellant upon request.