In short
An objection to the attorney fee is looked at against the tariff and the stage of the file. It is not a copy of the objection to the principal claim. A general breach of an act is in the article an enforcement complaint.
It is looked at against the tariff and the stage of the file. It is not a copy of the objection to the principal claim.
The objection to the principal debt stands apart.
The line of the attorneys' tariff stands on the official letter.
Related articles: an enforcement objection.
If you see an "attorney fee" higher than you expected on the account of the enforcement file, first take the payment order, the current cover account, and when the creditor's lawyer was recorded on the file. Then determine whether the fee arose from a court decision, from the enforcement proceeding, or from a separate retainer to which you are a party. These three fees are not subject to the same legal source and the same route of objection.
The enforcement attorney fee may be a proceeding expense added to the file account, within the frame of the tariff, in favour of the creditor who is represented by a lawyer in the proceeding. Although the existence of the fee is normal, a wrong base, a duplicate calculation, a rate that does not fit the stage of the proceeding, or an act before the lawyer's record, can be discussed. This article is for general information. An exact amount calculation cannot be made without the date of the act and the tariff in force being seen.
First determine which attorney fee is in question
The expression "attorney fee" is used for different relationships:
The enforcement-proceeding attorney fee
If the creditor carries on the enforcement proceeding through a lawyer, the fee charged to the debtor under the Minimum Attorneys' Fee Tariff can be added to the file account. This fee is added to the principal claim with the character of a proceeding expense.
The adverse attorney fee in the court decision
At the end of an action, the court may charge an attorney fee in favour of the other side against the side that was found unjust. When the decision is put into enforcement, this item is part of the judgment. The enforcement office cannot change the court's judgment. A calculation contrary to the judgment, or a duplicate collection, can be supervised.
The fee in the retainer
The fee agreed in the contract the client made with his own lawyer is a separate debt relationship. The claim that this fee is too little or too much is not the same as a complaint relating to the proceeding attorney fee in the other side's enforcement file.
In the objection petition, only saying "I do not accept the attorney fee" leaves uncertain which legal item is being discussed. First the source of the line on the payment order, or on the cover account, should be determined.
How is the enforcement-proceeding attorney fee calculated?
The calculation is determined according to the Minimum Attorneys' Fee Tariff in force on the date the act was carried out, and according to the stage of the proceeding. The tariff may provide a fixed fee for some claims, and a proportional fee for some claims. As the amount of the claim increases, rules such as a graduated rate or a minimum amount may come onto the agenda.
The following information is needed in the check of the calculation:
- The principal claim in the request for the proceeding
- The kind of the proceeding
- The date of the proceeding and of the payment
- The record of the creditor's lawyer on the file
- Whether the debt was paid within the payment period, before the attachment, or afterwards
- Whether the file was collected wholly or in part
- Whether there is a court decision relating to the same claim
Because the tariff can change by years, applying today's amount directly to an old file may be wrong. For which act, and on which date, the fee arose should be determined.
The principal, the interest, and the other items
Which items of the claim were included in the calculation base of the attorney fee should be checked. The enforcement directorate gathering the principal, the interest that has accrued, the interest after the proceeding, and the expenses onto the same base may not be correct in every situation. The account statement of the file should be taken. The figure that was used should be asked openly.
In a partial proceeding, or in an objection to a part of the debt, the fee calculation can be associated with the part that became final and that was collected. Drawing a certain fee over an item that was not accepted can give rise to an objection. Together with this, the minimum-fee limit of the tariff is also taken into account.
On which grounds can an objection come onto the agenda?
An objection or a complaint directed at the enforcement attorney fee does not rest only on the amount being felt to be high. A concrete error of calculation or of procedure should be shown. The claims often met are these:
- The creditor not being represented by a lawyer in the proceeding
- A fee being written for a period in which the lawyer did not join the file
- The tariff of the wrong year being applied
- The base of the proportional fee being determined wrongly
- The reduced-tariff rule relating to the payment stage being disregarded
- A duplicate attorney fee for the same claim
- The fee in the judgment being multiplied again, and wrongly, in the proceeding
- A partial payment or a collection not being deducted from the account
- A cover account that exceeds the file debt
If one item is wrong, the result does not come out that the whole proceeding is invalid. The debtor may object only as regards the attorney fee or a certain expense. The principal may have been accepted. The amount of a partial objection should be written openly.
An objection at the payment-order stage
If the payment order has been served and the proceeding has not yet become final, the principal claim, the interest, and the proceeding expenses should be examined together. In enforcement without a judgment by the route of general attachment, an objection within the period can stop the proceeding wholly or in part, according to its scope. The attorney-fee calculation can also be made the subject of an objection as an accessory item.
The following separation is useful in the text of the objection:
- An objection to the whole or to a part of the principal debt
- An objection to the interest rate and to the starting date
- An objection to the attorney fee and to the expense account
- An objection to jurisdiction or to the signature
If the proceeding rests on a negotiable instrument or on a judgment, the authority of the application and its effect are different. Giving a general petition to the enforcement office, without the difference between enforcement upon a judgment and without a judgment being taken into account, may not be enough.
While an objection is made only to the attorney fee, if the principal is accepted openly, the risk of payment and of attachment may continue as regards the part that was accepted. The scope of an objection to the enforcement proceeding should be built carefully for this reason.
A complaint against the directorate's account in a file that has become final
After the proceeding becomes final, the enforcement directorate draws up the current cover account. If the problem is that the tariff was applied wrongly in this account, the route of a complaint to the enforcement court may come onto the agenda. The period of the complaint may change according to the date the error was learned and to the relation of the act with public order.
The following can be added to the application file:
- The payment or enforcement order
- The request for the proceeding
- The power of attorney, and the date the lawyer entered the file
- The detailed account statement of the enforcement directorate
- The section of the tariff that was applied
- The documents of the payment and of the collection that were made
- The court judgment, if there is one
The calculation that is thought to be correct should also be shown in the complaint petition. Rather than an abstract claim in the form "it was written in excess", the base, the rate, the date, and the duplicate item are made concrete.
Making a complaint does not stop the file automatically in every situation. If there is a risk of collection or of attachment, the conditions of a request for a stay should be assessed separately. When the court decision is taken, it is checked that the enforcement directorate corrected the account.
The attorney fee in the court judgment
If it is thought that the adverse attorney fee awarded in the court decision is wrong, this error is, as a rule, put forward on the suitable appeal against the decision, such as a regional appeal or cassation. The enforcement directorate cannot assess the amount in the operative part of the judgment again.
Together with this, the enforcement order can be supervised in the following respects:
- The addition of a fee item that is not in the judgment
- The same attorney fee being requested twice
- An amount that was paid being put into a proceeding again
- A wrong start or rate of interest
- Turning to a debtor who exceeds the scope of the judgment
The operative part of the judgment and the enforcement order should be compared line by line. The capability of enforcement of an expression that passes in the reasoning of the decision, but that does not take place in the operative part, is assessed separately.
How does an early payment affect the attorney fee?
If the debtor closes the debt within the payment period after receiving the payment order, the regulation of the tariff that provides a lower proceeding attorney fee may come onto the agenda. In a file that proceeds to the stage of attachment and of sale, a different calculation may be made. The relevant section of the current tariff should be looked at.
In an early-payment plan, the following steps can be followed:
- Take the cover account for the day of payment.
- Ask the attorney-fee rate applied in the account.
- Confirm in writing with which stage reduction the payment was calculated.
- Draw up the slip with the file number.
- Check that the balance was reduced to zero after the collection.
An agreement of a reduction with the creditor on the subject of the principal does not mean that the enforcement-proceeding attorney fee and the fees were also erased. In the text of the settlement, on whom these items will remain should be written openly.
More than one file, and a duplicate fee
The creditor may have started a proceeding by dividing the same debt into parts, or by using the same document in different files. The reverse is also possible. There may also be more than one legitimate proceeding, based on a different invoice, period, or court decision, between the same parties.
A table can be made for the check of duplication:
The first proceeding: the contract or the invoice (the relevant period). The second proceeding: the document to be compared (the relevant period).
A payment made for the same claim should be appropriated correctly in all the files. An objection to the expense and to the attorney fee that increased because of an unnecessary multiplication of the files is assessed in the concrete event.
A partial payment, the cover account, and a return
When a partial payment is made, interest and expense may continue to run over the remaining debt. To which item the payment was appropriated matters. In the enforcement file, the collection being counted first to the expense, to the interest, or to the principal is examined according to the current rules and to the payment explanation.
If it is determined later, by a court decision, that an excess attorney fee was collected, a correction of the account, and a return if the conditions exist, may come onto the agenda. From whom, and by which procedure, the return will be asked changes according to whether the money was transferred in the file or to the creditor. For this reason, a reservation, the collection receipt, and the file account statements should be kept.
If you put forward that you are not a debtor, focusing only on the attorney-fee account may not be enough. The principal proceeding and the possibility of a negative declaratory action should be assessed together.
A fee dispute arising from the retainer
If you have a disagreement with your own lawyer on the subject of the fee, this is a dispute separate from the attorney fee in the other side's enforcement file. The written contract, the work that was done, the cost advances, the adverse attorney fee that was collected, and the payments are examined.
If the lawyer starts a proceeding for the fee against the client, the debtor can object to the payment order according to the general rules. The validity of the contract, and the scope of the work that was done, can be discussed in the general court. A complaint against the enforcement director's tariff calculation does not resolve the contractual dispute on its own.
The check of the file account in Ankara
In the enforcement offices in Ankara as well, the attorney fee is calculated over the national tariff. A local rate is not applied. The density of the office may affect the speed of the preparation of the cover account. It does not change the calculation rule. Writing a certain date in the request for the account is important, because the interest and the collection fee may change according to the daily situation.
Even if the file is in another city, a debtor living in Ankara can see the papers over UYAP. Which enforcement court the complaint will be directed to is determined according to the office that carried out the act. After the electronic paper is sent, it should be confirmed that the record was entered on the correct file.
A last assessment
The first step of an objection to the enforcement attorney fee is to separate the source of the fee. The proceeding tariff, the court judgment, and the private retainer are different. Then the date of the act, the tariff, the base, the payment stage, and the duplication are checked. An objection before the proceeding becomes final, and a complaint against the directorate's act in a file that has become final, are not the same route either.
For the general frame of enforcement and bankruptcy processes, the page enforcement and bankruptcy law can be examined. This content carries the purpose of general information. The correct calculation and the application should be determined according to the current tariff and to the papers of the concrete file.
Where the attorney-fee item is read from
This article reads the tariff line, the stage of the proceeding, and the file account side by side. This article does not add a fee rate and a percentage that are not written in the file. An Ankara lawyer separates, from the record, that the office being in Çankaya does not choose the competent enforcement office. This article does not put the objection to the principal claim in the place of this item. The frame is read with the tariff record in the file, the Enforcement and Bankruptcy Code numbered 2004.
Conclusion
This article is for general information. The document, the period, and the procedure of the concrete event should be read separately. There is no promise of a result from memory.