Residence Objection Supreme Court Decision

Summary:

In case of residence objection: The value that the debtor can buy the appropriate house in terms of his social status should be determined through an expert, if this value is less than the value of the house that is the subject of the property objection, the embarrassed house should be sold, the price required for the house purchase should be given to the debtor and the remaining price should be paid to the creditor.

In this case, it should also be decided that the sale will take place in such a way that it will not be less than the amount that the borrower can buy a house according to his social status.

T.C.
Supreme
General Assembly of Law

Main Number:2013/659
Decision No:2014/252
K. Date:5.3.2014

(… Stating that the debtor’s appropriate house was seized in the enforcement proceedings initiated against him, 82 of the IIK.it is observed that he applied to the enforcement court with a request to lift the seizure in accordance with the article, and the court decided to lift the seizure.

IIK’s 82/12.according to the article, the debtor’s “suitable“ house cannot be seized. Whether a residence is suitable for the condition of the debtor is determined according to the social status of the said person at the time of foreclosure and the needs of the debtor and his family. The term “family” here is in a broad sense and includes dependents who live under the same roof with the debtor. Executive by the tribunal, the borrower, is forced to live with those who mentioned a price necessary to obtain appropriate housing into which it should be given, and the abode of the sales price should be left to the debtor the amount determined necessary to the above qualities, the remainder must be paid to the creditor.

Places that exceed these criteria and places in the home, outside of a residence that includes a room and a hall that exceed reasonable dimensions and contains mandatory items for residence, are contrary to the purpose provided for in the article. The duty and title of the debtor do not require that he himself reside in a more magnificent abode than the one designated above.

In the concrete case, in the expert report prepared by the court as a result of the discovery made at the scene, the value of the real estate was determined, but it is seen that the judgment was established based on the expert’s report, without determining the value at which the borrower could buy a suitable house in the more modest districts of the city, which does not have luxury features.

In this case, the work to be done by the court, by taking additional report from experts, the borrower where the real estate is located in the town of Tuzla, more modest place, you can get the value into a proper house after the detection of the detected quantity sold is less than the value of mahcuz mahcuz, the borrower was required to get into a proper house itself, the cost of the rest to be paid to the creditor, the borrower can take home less than the amount of the sale not to be proper to build into the decision should be based on the provision in the written form with the review report missing and inadequate facility is isabetsiz…)

The case was overturned on its grounds and the file was returned to its place, and the previous decision was resisted by the court at the end of the retrial.

APPELLANT: Counterparty-acting creditor

DECISION OF THE GENERAL ASSEMBLY OF CIVIL

The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the papers in the file were read, the necessity was discussed:

The request is 82/12 of the IIK.it is related to the complaint of foreclosure due to the residence based on the article.

The complainant-debtor, in the enforcement proceedings initiated against him by the creditor, claiming that his appropriate house has been seized, is subject to Article 82 of the IIK.mad-desi has requested that the seizure be lifted accordingly.

The counterparty-creditor’s attorney defended the dismissal of the case.

The court decided to lift the seizure with the acceptance of the complaint on the grounds that the seized house belonging to the debtor is a suitable house and cannot be seized; upon the appeal of the counterparty-creditor’s attorney, the judgment was overturned by the decision taken by the Special Chamber in the same text as above.

The contents of the file and the evidence collected; Kadıköy 7. In the execution file of the Enforcement Directorate based on 2006/15265, creditor A.He. by, the debtor M.B. against him, Kartal 1 for a total receivable amount of 36.912.72 UAH.Business Mah.’sinin

based on the decision dated 14.11.2006, 2005/74 basis, 2006/7009 decision numbered, the decision based on the follow-up was initiated on 5.12.2006 and the decision based on the follow-up; plaintiff A.He., the defendant of M .B. the execution order, which is related to the collection of the labor receivables of the plaintiff arising from the defendant’s work at the workplace, is issued by the debtor M.it is understood that it was notified to the on 07.12.2006, the follow-up was finalized, and a lien was placed on the immovable on 31.07.2007.

82/12 of the Enforcement and Bankruptcy Code No. 2004.in the article; “The appropriate house for the borrower (However, if the value of the house is too high, the amount that can be taken as a suitable place for the price is confiscated and sold to be left to the borrower.).”it has been arranged in what way the appropriate household phenomenon will be determined by saying. In the reports received by the court, the value of the immovable property subject to the lawsuit has been determined, but the house value that can be taken into account has not been determined.

In that case by the court; by taking additional report from the expert, the borrower where the real estate is located in the Tuzla district, can buy into a proper house value should be determined; this value is less than the value of the home if the subject of the case attached mahcuz home sold into proper payment to be taken home to be given to the debtor, the creditor and the amount remaining to be paid to the borrower the amount of the sale of your house into a proper home can take mahcuz not to be less than that should be decided to be made.

For the reasons explained, the court should comply with the decision to overturn, while resisting the previous decision is contrary to the procedure and the law, and the decision to resist should be overturned.

result

With the acceptance of the appeal objections of the counterparty-creditor’s attorney, for the reasons specified in the decision to overturn the decision to resist, the provisional 3 of the Code of Civil Procedure No. 6100.taking into account the attribution of the article HUMK.’s 429.in accordance with Article 366 | in of the Enforcement and Bankruptcy Code No. 2004, to be OVERTURNED from the procedure, to return the appeal advance fee to the depositor upon request.in accordance with the article, a unanimous decision was made on 05.03.2014, so that the decision correction path is open within 10 days from the date of the notification.

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