Since The Money Collected Externally Was Not Collected By The Enforcement Directorate, The Creditor Should Not Pay The Prison Fee.
COMPLAINT CASE – MONEY COLLECTED EXTRAJUDICIALLY NOT COLLECTED BY THE EXECUTION DIRECTORATE
THE CREDITOR SHOULD NOT PAY THE PRISON FEE
– REJECTION IN RESPECT OF THE PRISON FEE
THE INAPPROPRIATENESS OF THE DECISION – THE JUDGMENT IS SET ASIDE
SUMMARY: In the present case, … The 3rd Enforcement Office’s case file contains a request for enforcement dated 12.12.2011, seeking a total of … TL. The creditor’s representative applied to the Enforcement Directorate, stating that they had collected … TL externally and waived their claim for this amount, and requested the return of the guarantee letter to the debtor. The Enforcement Directorate decision subject to the complaint ruled that the request would be granted if the external collection fee and prison fee were paid. Since the relevant article of Law No. 2548 states that the prison fee shall be collected from the “collected” amount, and since the amount collected externally was not collected by the Enforcement Directorate, the creditor is not required to pay the prison fee.
While the court should have ruled in accordance with this acceptance, it was incorrect to issue a rejection decision regarding the prison fee.
(Law No. 492, Article 23) (Law No. 2548, Article 1)
Case: At the end of the trial in the case between the parties described above, the court decided to dismiss the case, and the plaintiff’s attorney appealed the decision.
The Chamber reviewed the file and considered the matter.
Decision: The creditor’s attorney, … that they had initiated enforcement proceedings with the 3rd Enforcement Directorate under file no. 2011/3339, and that they had requested the return of the guarantee letter because they had collected their debts externally during the proceedings, but that the Enforcement Directorate had decided to accept the request upon payment of the collection and prison fees, and therefore requested that the directorate’s decision be overturned.
The court ruled to dismiss the complaint on the grounds that there was no legal violation in the deduction of the collection fee and the demand for the prison fee, in accordance with Article 23 of the Fees Law No. 492 and Article 1 of Law No. 2548, and the decision was appealed by the creditor’s attorney.
1- Based on the mutual claims and defenses of the parties, the documents they relied on, and the reasons stated in the appealed decision, the debtor’s attorney’s other appeals outside the scope of the following paragraph were not found to be valid.
2- Regarding the creditor’s attorney’s other appeals:
Article 1 of Law No. 2548 states, “Two percent of the amount collected from enforceable and non-enforceable claims with a specified amount and value by enforcement offices, and half of the collection fee from the enforcement of claims without a specified value
shall be collected as a fee.”
In the present case, … In the enforcement file numbered 2011/3339 of the 3rd Enforcement Office, a total of 151,751.60 TL was claimed with the enforcement request dated 12.12.2011. The creditor’s representative applied to the Enforcement Directorate, stating that they had collected 209,000.00 TL externally and waived their claim for this amount, requesting the return of the guarantee letter to the debtor. The Enforcement Directorate decided to grant the request if the external collection fee and prison fee were paid.
Article 1 of Law No. 2548 states that the prison fee shall be collected from the “collected” amount.
Since the amount collected outside the court was not collected by the Enforcement Directorate, the creditor is not required to pay the prison fee. While the court should have ruled in accordance with this acceptance, the decision to reject the prison fee is incorrect.
Conclusion: For the reasons explained in paragraph (2) above, the creditor’s attorney’s appeal objections are partially valid and accepted, and the court’s decision is reversed in accordance with the reasons stated above, pursuant to Articles 366 and 6100 of the Enforcement and Bankruptcy Code (EBC) and the Transitional Article 3 of the Civil Procedure Code (CPC), and Article 428 of the Civil Procedure Code (CPC) No. 1086. The remaining appeals of the creditor’s attorney are dismissed for the reasons explained in paragraph (1) above. and it was decided by unanimous vote on January 15, 2018, that the parties may request a correction of the decision within 10 days of the notification of the Court of Cassation’s ruling in accordance with Article 366/3 of the Enforcement and Bankruptcy Code, and that the advance fee shall be refunded to the appellant upon request.