Petition for Declaration to Expert Report
ANTALYA 2ND CONSUMER COURT
FILE NO : …… E.
CLAIMANT : …………..A.Ş.
ATTORNEYS : Att………….
DEFENDANT : ………..
SUBJECT : Presentation of our objections and declarations against the expert report.
EXPLANATIONS :
We have been notified of the Expert Report dated 10.12.2021 received in the case pending before the file of your court with the above-mentioned case number, and we submit our declarations and objections against the report within the time limit.
Pursuant to the agreements concluded between the plaintiff and the client bank, the plaintiff was granted …. **** **** …. numbered credit card, …. numbered overdraft account, ….. numbered support loan, ….. numbered support loan and …numbered support loan were provided to the plaintiff.
Upon non-fulfilment of the obligations arising from the contracts and non-payment of the debt to the client bank, an enforcement proceeding was initiated against the plaintiff by the Antalya General Enforcement Directorate with the file numbered ………….. E. numbered file of Antalya General Enforcement Directorate.
As a result of the payments made by the plaintiff, the enforcement file was closed on 14.04.2021 as a result of the agreement reached with the plaintiff to close the file at a discounted rate.
As can be seen in the expert report, the existence of our receivable is fixed and the file of Antalya General Enforcement Directorate ……. The file numbered of the Antalya General Enforcement Directorate, which was started to be pursued, was closed on 14.04.2021 with external collection by making a discount. The debt balance amount of 3.119,50 TL determined by the expert is due to the interest discount. For this reason, although we closed the file with a discount, the claim that we made an overpayment is unwarranted and malicious.
Attached is the statement of account dated 28.05.2021 prepared by the Enforcement Directorate. The total debt in this statement of account is calculated as 28.036,97 TL. (The collections appearing in this statement of account and the explanations regarding the collections reported to the enforcement file are also included in the attached document, and a payment of 800,00 TL reported and a collection of 10.500,00 TL including the balance collection fee and expenses dated 12.04.2021 are not included in UYAP records. If these amounts are deducted from the file account, the balance debt is approximately 17.000,00 TL). The execution file initiated against the debtor was closed by the client bank by applying interest deduction. Therefore, there is no excess interest receivable from the plaintiff. On the contrary, the defendant client has closed the plaintiff’s file by giving up the interest receivable at a large rate to which it is legally entitled.
Again, as can be seen in the expert report, “Although the lawsuit petition requests calculation according to Articles 88, 100 and 120 of the TCO, we are of the opinion that the articles of the TCO cannot be applied to these debts, since the maximum interest rates to be applied to credit cards (credit card restructuring and debt settlement agreements) and overdraft fees are determined according to the CBRT communiqués.” Accordingly, there is no irregularity in the interest rates applied by the bank and they comply with the relevant laws and regulations.
As stated by Mr Öz in his opinion;
“Pursuant to Article 8/f.1 of the TCC, banks, as commercial companies, are not subject to the limitation of contractual interest under Article 88/f.2 of the TCO and the limitation of default interest under Article 120/f.2 of the TCO in all their commercial transactions, including personal loan agreements to which they are a party; furthermore, pursuant to Article 144 of the Banking Law No. 5411 and the communiqués and regulations issued accordingly, they shall not be subject to the interest limitations under Article 88/f.2 and Article 120/f.2 of the TCO; the fact that some loan agreements are deemed to be consumer transactions pursuant to the Law on the Protection of Consumers means that they are also not subject to the interest limitations under Article 3 and Article 120/f.2 of the TCC; and I have reached the opinion that since the fact that some credit agreements are considered consumer transactions in accordance with the Law on the Protection of Consumers does not prevent them from being considered commercial transactions in accordance with Article 3 and Article 19/f.2 of the TCC, they will not be subject to contractual and default interest limitations unless they are unfair terms in accordance with Article 5 of the TCC.(Prof.Dr.Turgut Öz, Legal Opinion, 29.06.2019, Syf.10;)”
(Prof. Dr. Turgut Öz, Legal Opinion, 06.06.2019, p.10;)” and clarified the issue. For these reasons, there is no irregularity in the interest applied in terms of Loan, Credit Card and Overdraft Account. The allegations that the client bank has over-collected from the plaintiff are devoid of legal basis, it is fixed that the file numbered ……… Esas of the relevant Antalya General Enforcement Directorate has been closed by making a discount. …/…/…
CONCLUSION and REQUEST : For the reasons explained above and to be considered ex officio by the Honourable Court, in line with our reply petition and expert report;
With the dismissal of the lawsuit,
We submit our request for a decision to charge the defendant party with the costs of the proceedings and attorney’s fees.
Sincerely.
Plaintiff………… attorneys
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