8. Legal Department 2015/16133 E. , 2016/6077 K.
“Text Of Jurisprudence”
COURT :Family Court
TYPE OF CASE : Liquidation of Property Regime
14. The claimant-the counter-defendants … and … the respondent-the counter-plaintiff … concerning the partial acceptance and partial rejection of the case for the liquidation of the property regime between them … and the respondent-the decommissioning of the property regime. The examination of the numbered decision issued by the Family Court by the Supreme Court by holding a hearing was requested by the plaintiff-the deputy of the counter-defendants, the defendant-the deputy of the counter-plaintiff by participating without a hearing. After reviewing the file, it became clear that the work was subject to a hearing, and a summons was sent to the parties, who were appointed on Tuesday for the hearing. On the day of the hearing, the appellant … himself and the deputy Lawyer … came, from the opposite side … personally and the deputy Lawyer … came. After the hearing was started and it was understood that the appeal request was within the time limit and the oral statement of those present was heard, the hearing was terminated; the file was examined and considered necessary:
decision
Plaintiff-coupled … file and defendants attorney, the victim and the defendant were married in 2001, wife of …’S that was in 2007, in the Union of marriage with the goods of the deceased owned assets by taking personal by explaining that the defendant has been registered on behalf of immovable property on behalf of those who substitute and vehicle registrations with the cancellation of the registration of the property in proportion to their shares of the inheritance, unless there is a settlement with legal interest receivable, together with the decision to be taken from the defendant wanted to give dismissal a combined defended.
Defendant-plaintiff of the merged file … his deputy advocated that the original case be dismissed due to unwarranted opening, and in the petition for the merged case, he asked that the liquidation of bank accounts, vehicles and other assets acquired within the marriage union and the removal of the liquidation receivable at a rate of 1/2 from the merged defendants be decided.
10.000 TL depending on the rejection of the request by the court for the cancellation of the registration of real estate and vehicles in the original case, the acceptance of the original case and the merged case, as well as the request.10.000 TL from the defendant, again depending on the request, together with the valid legal interest of the receivable for participation in the residual value from the date of the lawsuit. now that it has been decided that the receivable for participation in the value will be taken from the merged defendants together with the valid legal interest from the date of the lawsuit; The provision has been appealed by the plaintiff-the deputy of the merged defendants and the defendant-the deputy of the merged plaintiff ….
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It is up to the parties to assert material events, the judge to make a legal qualification and determine the articles of the law to be applied (6100 p.(HMK 33 m).According to the way the claim is put forward, the main case is related to the cancellation of the title deed and registration caused by the liquidation of the death-related property regime, if it is not, it will no longer receive participation in the value, the merged case; the request for receivables from immovable property, vehicles and household goods based on the same reason.
The decedent … and the defendant were married on 29.12.2001, the property regime between the parties ended after the spouse died on 20.05.2007. Parcel No. 9 on the Independent case … the name … the section on 08.07.2004,…the name … the parcel No. 5 on the independent section,26.11.2002, on plate car,purchased on behalf of the defendant on the date 11.02.2002 have been registered, the yacht is named…; purchased on 26.07.2006 has been registered on behalf of the deceased.
1-According to 07.10.1953 day 8/7 YIBK, the liquidation creditors cannot request the same rights except in separate cases, the defendant’s vehicle cannot be requested to be liquidated due to the fact that the defendant’s personal property is due to be given to the defendant’s spouse as a birthday gift, the defendant’s yacht and common household items the plaintiff’s liquidation receivables are duly determined, since the court has decided in writing on the request, other appeals by the party’s attorneys other than the reasons shown in the following paragraphs have not been considered in place.
2-As for the other appeals of the plaintiff-the deputy of the merged defendants and the defendant-the deputy of the merged plaintiff; Although the court decided to dismiss the case based on the opinion that the real estate is the defendant’s personal property, the decision made does not correspond to the scope of the file and the evidence collected.
Case No. 5 on the independent section, 26.11.2002 purchased from the defendant in the history of the construction company has been registered on behalf of. Construction protocol dated 19.11.2002 held between the defendant with the delivery of the sales price deducts from apartment Hatice canvas explained that 06.11.2002 dated 13.11.2002 and a total of $ 35,000 worth of receipts have been issued and received, the delivery protocol laid out apartment from the joint account of the parties in Akbank on 19.11.2002 295.000 $ were taken. If the subject of the lawsuit is the independent section No. 9 of the immovable property; it was purchased on 08.07.2004 and registered in the name of the defendant, and on the same date, TL 170,000 was withdrawn from the bank account by the trustee. The dates of purchase of real estate, the date of the apartment delivery protocol, receipt receipts and withdrawal of funds from accounts fall on the same or close days. The deputy plaintiffs made a request by claiming that the real estate in question was purchased with money withdrawn from the joint account, and that the trustee would not receive liquidation. Considering that the date of issuance of the real estate sales protocol and the dates of withdrawal of money from the bank account coincide with the same day, the court has no opportunity to agree with the opinion that this real estate is the defendant’s personal property and cannot be subject to liquidation.
Apart from that, the on parcel No. 6 24 4 independent section located in Mersin, the title deed is registered on behalf of the defendant, and the defendant is in the nature of the personal property of the plaintiffs by giving income to rent out real estate, and rental income by declaring that exists at the will of liquidation was requested. TMK’s 219/4.according to the article, the income from personal goods is in the form of acquired property and is subject to liquidation. It was not correct to decide to reject the request on the grounds that the case filed by the court in terms of rental income is a personal property.
As for appeals against bank accounts, they were decided in writing by the account expert on the basis of the current balances at the time of decommissioning due to intensive movements in bank accounts and the inability to detect shifts between accounts due to equalization. As the expert report issued is insufficient, the bank
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it is also clearly stated in the expert report that their accounts could not be fully examined. Therefore, while the opening dates of bank accounts by the court should be determined by examining the account movements through expert witnesses, which Accounts are subject to liquidation and which plaintiff will receive liquidation according to the result that will occur, it is not in accordance with the procedure and the law to make a decision in writing with incomplete examination.
In these circumstances,; taking into account the issues described above, the complete collection of the party’s evidence, the proper determination of the plaintiffs’ liquidation receivables on the rental income of the independent section 6, which is the subject of the lawsuit and the defendant’s personal property, the opening dates and account movements of bank accounts, taking into account 2 bankers and 1 account specialist expert examination of the accounts, while a decision should be made on the basis of determining whether the bank accounts are goods subject to liquidation or not, it was not considered correct to make a decision in writing with incomplete research.
CONCLUSION: For the reasons described in paragraph (2) above of the appealed provision, the Temporary 3 of HMK No. 6100.article 428 of HUMK No. 1086. according to article 440/I of the CMB, a request for correction of the decision may be made by the parties within 15 days from the notification of the Supreme Court’s decision, and an advance fee of $ 24.30 may be paid to the plaintiff-counter-defendants, in case of request, in advance of $ 321.30 the refund of the fee to the defendant-counter-plaintiff was decided unanimously on 05.04.2016.
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