In Line With The Reversal Decision, The Expert Report Of The Complainant’s Receivable Should Be Evaluated And A Decision Should Be Made According To The Result
T.C. JUDICIARY
23rd Civil Chamber
Main: 2014/8017
Decision: 2015/2377
Date of Decision: 09.04.2015
THE CASE OF COMPLAINT AGAINST THE ORDER LIST – IN LINE WITH THE REVERSAL ORDER, THE EXPERT REPORT OF THE COMPLAINANT’S RECEIVABLE SHOULD BE EVALUATED AND A DECISION SHOULD BE MADE ACCORDING TO THE RESULT – INCONSISTENCY OF THE JUDGMENT BY QUOTING THE MATERIAL ERROR
SUMMARY: While the court should evaluate the expert report on whether the complainant’s receivable is within the scope of Article 166/2 of the Attorneyship Law No. 1136 in line with the reversal decision of our Chamber and make a decision according to the result, it was not correct to establish a judgment based on the erroneous reasoning created by quoting as a result of material error, although the subject of the decision of our Chamber and the characteristics of the concrete case are different.
(1136 S. Code Art. 166) (2004 S. Code Art. 15, 59, 100, 138, 206)
Case and Decision: At the end of the trial held in accordance with the reversal order of the complaint to the order list between the parties, the judgment given for the acceptance of the complaint for the reasons written in the judgment was appealed with hearing by the attorney of N…, the complainant within the period.
Since the decision subject to appeal is not subject to a hearing due to its nature, the file was examined, after it was decided to make the examination on the documents by rejecting the request for a hearing and it was understood that the request for appeal was in due time, the file was examined, the necessity was discussed and thought.
The complainant’s attorney stated that his client has attorney fee receivables from the debtor of the proceeding arising from the inheritance division and dissolution of the partnership and negative determination cases, that the said cases are related to the immovables subject to price sharing, that as a result of these cases, the immovables were acquired by the debtor of the proceeding, and that pursuant to Article 166 of the Attorneyship Law. In accordance with Article 166 of the Attorneys’ Law, in this case, the attorney fee receivable should be registered in the ranking list as a preferential receivable, but claiming that his client was registered in the 4th place after the complainants in violation of the aforementioned legal regulation, he requested the cancellation of the ranking list and the registration of his client’s receivable in the 1st place by considering the priority right.
The attorney of the complainant N…. requested the rejection of the complaint. Other complainants did not respond to the complaint.
The court decided to dismiss the complaint on the grounds that the complainant’s receivable is not one of the privileged receivables regulated in Article 206 of the EBL and that it does not meet the conditions for participation in the attachment in the first row, and the decision of our Chamber dated 04.03.2013 and numbered 557 E., 1236 K. dated 04.03.2013 and numbered 557 E., 1236 K., it was decided that the complainant’s receivable included in the ranking list is within the scope of Article 166/2 of the Attorneyship Law No. 1136. Article 166/2 of the Attorneyship Law No. 1136, and if it is determined that it is within this scope, it was reversed by stating that the order in which the priority right will be taken should be determined and the result should be reached, and as a result of the trial conducted in accordance with the reversal order, according to the claim, defense and scope of the file, the complainant lawyer was not paid an attorney fee due to dismissal, The proceeding initiated by the complainant for the collection of this has been finalized, therefore, the attorney fee receivable in question is one of the preferential receivables, in this case, from the money subject to sharing, first of all, the relative attorney fee that the complainant lawyer should receive due to the enforcement proceeding initiated by the complainant lawyer for the collection of the attorney fee should be calculated and given (Article 138/3 of the EBL) and the remaining money should be distributed to the other creditors in the order list, taking into account the dates of attachment and whether there are conditions for the complainant in terms of Article 100 of the EBL. Article 138/3 of the EBL) and the remaining money should be distributed to the other creditors in the ranking list by taking into account the dates of attachment and whether the conditions in Article 100 of the EBL are present for the complainant, and the ranking list subject to the complaint was not prepared in accordance with these general principles, and it was decided to accept the complaint and cancel the ranking list.
The decision was appealed by the attorney of the complainant N…..
Complaint is about the order in the order list.
The court has decided to accept the complaint based on Article 138 of the EBL without relying on the expert report, despite the fact that the proceedings and case files constituting the basis of the attorney fee receivable of the complainant attorney were brought and an expert report was obtained in line with the reversal order of our Chamber.
Article 138/2 of the EBL, which is titled as “Distribution of the money”, stipulates: “The expenses related to all creditors, such as seizure, foreclosure and distribution, shall first be taken from the sale amount, and the remaining money shall be divided in proportion to their receivables, including the costs of the proceedings and the interest accrued.”, and subparagraph 3 of the same article states: “In proceedings by proxy, the amount of the attorney’s fee is calculated by the bailiff according to the attorney’s fee tariff, regardless of the contract made between the creditor and the debtor. The attorney fee determined in this way is also included in the costs of the proceedings.” Pursuant to this regulation, after the common expenses related to all creditors are deducted from the sale price, the remaining money is paid to the creditors in proportion to their receivables, including the principal receivable, interest, if requested, and follow-up expenses.
The follow-up expenses herein are the expenses that concern only that creditor and belong to his/her follow-up, and are the costs of payment and notification of the execution order, the fees paid in advance by the creditor (Articles 15 and 59 of the EBL) and the attorney’s fee. The attorney fee mentioned in the aforementioned regulation is among the expenses of the proceedings and is directly calculated by the bailiff during the allocation and added to the creditor’s receivables. There is no need for a separate proceeding for this attorney fee.
Article 166/2 of the Attorneyship Law No. 1136 reads as follows: “Due to the fee agreed upon by the contract and assessed by the judge, the attorney has the right of priority over other creditors on the property that the client has preserved or gained as a result of his/her own work and on the money or property to be collected from the other party in the case in accordance with the judgment. The right of priority shall rank according to the date of issuance of the power of attorney or, if the power of attorney is general, according to the date of the first official application made on behalf of the business owner for the work subject to the fee.
In the event of the bankruptcy of the business owner, the attorney’s attorney fee receivable also has priority. However, the provision of the first paragraph of Article 206 of the Execution and Bankruptcy Law dated 09/06/1932 and numbered 2004 is reserved.” The attorney’s fee, which is stated to be preferential in the aforementioned regulation, is related to the money or goods that the client has preserved or added to his/her assets as a result of the labor and work of the lawyer.
For example, if the immovable property subject to price sharing has been brought into the assets of the debtor as a result of a deed cancellation and registration lawsuit filed by the debtor, or has been preserved in the assets of the debtor as a result of a lawsuit filed against the debtor in this direction, in other words, it has not left the debtor’s hands, the attorney’s fee receivable of the attorney who undertook the representation of the debtor in this case is preferential over other creditors within the framework of the order to be determined according to the date of issuance or official application of the power of attorney.
In the concrete case, in the enforcement proceeding initiated by the complainant in the file numbered 2010/17786 E. of the …2nd Execution Directorate, the basis of his receivable is the settlement of the file numbered 2009/510 E. of the Ankara 12th Civil Court of Peace due to the “attorney fee agreement” between him and the debtor of the proceeding. numbered 2009/510 E. of the Ankara 12th Civil Court of Peace” and “the balance attorney fee receivable arising from the file numbered 2009/406 E. of the Ankara 6th Commercial Court of First Instance due to (another) attorney fee agreement dated 03.03.2009”.
These receivables, which the complainant claims to be preferential within the scope of Article 166/2 of the Attorneyship Law No. 1136, constitute the main receivable part of the enforcement proceeding. The attorney fee stated in Article 138/3 of the EBL is the attorney fee included in the expenses related to this proceeding only, as explained above. The subject of the complaint is not the attorney fee regulated in Article 138/3 of the EBL, but the order regarding the attorney fee receivable allocated to the complainant in the order list.
In this case, while the court should evaluate the expert report on whether the complainant’s receivable is within the scope of Article 166/2 of the Attorneyship Law No. 1136 in line with the reversal decision of our Chamber within the framework of these explanations made above and make a decision according to the result, it was not correct to make a written judgment based on the erroneous reasoning based on the erroneous reasoning created by quoting the subject of the decision of our Chamber dated 27.12.2011 and numbered 4374 E., 2875 K. and the characteristics of the concrete case, although the subject and the characteristics of the concrete case are different.
Conclusion For the reasons explained above, it was unanimously decided on 09.04.2015, with the acceptance of the appeal objections of the attorney of the complainant N…, that the judgment be reversed, the prepaid fee be refunded upon request, and the way of decision correction be open within 10 days from the notification of the decision.
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