Rejection Of The 30-Day Eviction Request Before The Expiry Of The Payment Period
T.C. JUDICIAL COURT 6TH CIVIL CHAMBER E. 2015/10497, K. 2016/2720, T. 4.4.2016
– LAWSUIT FOR RENT RECEIPT RECEIPT AND RELEASE OF OBJECTION TO THE EXECUTION PROCEEDING INITIATED FOR THE COLLECTION OF THE RENT RECEIPT (It is Erroneous to Remove the Objection Completely Due to Underpayment of the Rent – The Objection Should Be Removed Over the Remaining Part of the Rent Receivable / Default / Underpayment of the Rent)
– IT WAS ERRORFUL TO DISMISS THE OBJECTION IN WHOLE ( It Is Understood That The Total Rent Amount Is Missing From The ATM Printout Attached To The Objection Petition – Therefore, The Event Of Default Has Occurred / However, It Is Necessary To Remove The Objection On The Part Remaining Out Of The Amount By Deducting The Deposited Money )
– REJECTION OF THE DEMAND FOR EVACUATION MADE WITHOUT EXPIRATION OF THE 30-DAY PAYMENT PERIOD (Requirement to Wait for the Expiration of the Payment Period – The Creditor’s Evacuation Request from the Enforcement Court is Premature/Rejection of the Evacuation Request/Removal of the Objection to the Enforcement Proceeding initiated for the Collection of the Rent Receivable and Evacuation Case/Rent Receivable)
6098/m.315
2004/m.269/4
SUMMARY : The lawsuit is related to the removal of the objection to the proceeding initiated for the collection of the rent receivable and the eviction of the lease. The court decided to remove the defendant’s objection and evacuate the leased premises on the grounds that it was understood that the total amount of two months’ rent to be paid was missing from the ATM printout attached to the objection petition, and therefore the fact of default was understood to have occurred. In the light of what has been said, it is not correct to remove the objection completely, while the objection should be removed over the part remaining outside this amount by offsetting the payment, which is also accepted by the court. In addition, it is understood that the debtor was given a 30-day payment period with the payment order. The creditor cannot request eviction from the enforcement court before the expiration of this 30-day payment period. The creditor requested eviction from the enforcement court before the 30-day payment period expired.
LAWSUIT : The decision given by the enforcement court, dated and numbered above, has been appealed by the defendant in due time, all the papers in the file have been read and discussed and considered:
DECISION : The lawsuit is related to the requests for the removal of the objection to the proceeding initiated for the collection of the rent receivable and the evacuation of the lease. The court decided to accept the lawsuit, to remove the defendant’s objection and to evict the defendant from the immovable subject to the lawsuit, and the decision was appealed by the defendant’s attorney.
1- )In the examination of the appellate objections of the defendant’s attorney regarding the receivable;
There is no dispute between the parties regarding the 3-year lease agreement dated 12.9.2013, which is relied upon in the proceeding and taken as the basis for the decision. The plaintiff creditor, with the enforcement proceeding initiated on 7.5.2014, requested the collection of the monthly rent of 825,00 TL for April and May 2014, 1.650,00 TL, together with the interest accrued. The payment order was notified to the debtor on 29.5.2014, and the debtor stated in his objection within the time limit; that the creditor party concluded a lease agreement with their father on 12.9.2013, but after the death of the lessor, the heirs could not agree among themselves, and the rent receivable subject to the enforcement proceeding was paid to the account of the creditors’ attorney on 12.5.2014, and accordingly, there is no rent debt. From the receipt attached to the objection petition, it is understood that a payment of 1.645,00 TL was made to the İş Bank account on 12.5.2014 with the description “… rent payment”. In the lawsuit filed upon the objection, the plaintiff’s attorney stated that the defendant made a payment of 1.645,00 TL on 12.5.2014 after the execution proceedings as 2 months’ rent, and although the two-month rent was 1. 650,00 TL, the rent deposited to the bank was deposited 5,00 TL less, in addition, the payment made by the defendant will first be offset against the interest, costs and attorney’s fees that have accrued to date, the defendant’s objection is unfair and baseless, and requested and sued for the removal of the defendant’s objection and the eviction from the leased property. The defendant’s attorney stated that they submitted the payment receipt to the file and defended the rejection of the case. The court decided to lift the objection of the defendant and to evict the defendant from the leased premises on the grounds that although the total amount of two months’ rent to be paid is 1.650 TL, it is understood from the ATM printout dated 12.5.2014 attached to the objection petition that the payment is 1.645,00 TL, that is, the payment is incomplete, therefore it is understood that the fact of default has occurred. In the light of the foregoing, it is not correct to decide to lift the objection completely and to award execution-denial compensation over 1.650,00 TL, while the objection should be lifted over the part other than this amount by deducting the payment of 1.645,00 TL, which is also accepted by the court.
2- )As for the appeal objections of the defendant’s attorney for eviction;
The plaintiff creditor initiated an enforcement proceeding on 7.5.2014 with a request for eviction based on the written lease agreement dated 12.9.2013, and the payment order was notified to the defendant debtor on 29.5.2014. It is understood that the debtor was given a 30-day payment period with the payment order. Pursuant to Article 315 (BK260.) of the TCO, which should be applied with reference to Article 269/1 of the EBL, the creditor cannot request eviction from the enforcement court before the expiration of the 30-day payment period. The creditor’s attorney filed an eviction request from the enforcement court on 19.6.2014 before the 30-day payment period expired. For this reason, while the eviction request should be rejected, it is not correct to decide for eviction as written.
The decision should be reversed for these reasons.
CONCLUSION : For the reasons explained in subparagraphs 1 and 2 above, it was unanimously decided on 04.04.2016 to accept the objections on appeal and to VACATE the decision pursuant to Article 428 of the Code of Civil Procedure and Article 366 of the Bankruptcy Code, and to refund the prepaid appeal fee to the appellant if requested, in accordance with the provision of the provisional Article 3 added to the Code of Civil Procedure No. 6100 with the Law No. 6217.