Results Of The Negative Determination Case Pursuant To The Execution And Bankruptcy Law
NEGATIVE ASSESSMENT CASE RESULTS
Conclusion of the Negative Determination Case in Favor of the Creditor
If the lawsuit is concluded in favor of the creditor, i.e. if it is rejected, the existence and validity of the legal relationship on which the receivable subject to the proceeding is based is determined by final judgment. If the lawsuit was filed before the enforcement proceedings, the creditor gains the opportunity to apply for enforcement by judgment with the judgment obtained.
If the lawsuit is dismissed, the interim injunction obtained by the debtor in return for a collateral not less than fifteen percent of the receivable will be lifted. According to the Court of Cassation, the judgment does not need to be finalized for this to happen. Since the creditor has reached his/her receivable late due to the negative assessment lawsuit, a compensation of 20% of the amount subject to the lawsuit shall be awarded against the debtor. In order for such compensation to be awarded, the debtor must have stopped the enforcement proceedings or prevented the payment of the money in the enforcement office to the creditor by obtaining an interim injunction with the negative assessment lawsuit. If such an interim injunction has not been obtained, the debtor will not be awarded 20% compensation against the debtor since the creditor will not be harmed.
Conclusion of the Negative Determination Case in Favor of the Debtor
If the plaintiff debtor wins the negative declaration lawsuit filed during or after the enforcement proceedings, in other words, if the court determines that the plaintiff does not owe the defendant, the enforcement proceedings and the seizure, if any, become illegal. The acceptance of the lawsuit constitutes a final judgment in favor of the debtor. Because this case is resolved according to general provisions. For this reason, the parties cannot file a new lawsuit based on the same issue. Upon the adjudication of the case in favor of the debtor, the proceedings shall immediately cease. If it is decided that the plaintiff has no debt, the execution is fully restored, and if it is decided that the plaintiff is partially indebted, it is partially restored.
If the finalized judgment is submitted to the execution office, the execution manager performs the reinstatement procedures automatically. In the event that the lawsuit is concluded in favor of the debtor, the interim injunction decisions are annulled. The money in the execution office is given to the debtor. For this, the judgment does not have to be finalized. However, the debtor can receive the collateral deposited due to the interim injunction in case the judgment becomes final. Another consequence of the case being concluded in favor of the debtor is that the creditor may face compensation.
If it is understood that the proceeding that forced the debtor to file a negative declaration lawsuit is unfair and malicious, upon the request of the debtor, it is decided to collect the damage incurred by the debtor due to the lawsuit from the creditor. The damage to be assessed cannot be less than twenty percent of the receivable subject to the unfair proceeding. As it can be understood from the article, such a compensation cannot be ruled in favor of the debtor in negative assessment cases filed before the enforcement proceedings.
Court of Cassation 7th HD. , E. 2012/4217K. , 2013/174 , T. 17.1.2013 ;
”Article 67/2 of the Enforcement and Bankruptcy Law stipulates that if the enforcement proceedings are unfair and malicious, compensation shall be awarded against the creditor. Pursuant to the aforementioned provision of the law, in order to award compensation in favor of the plaintiff, the enforcement proceeding by the defendant/creditor must not only be unfair, but also the proceeding must be made in bad faith. In the case at hand, it is understood that the defendant’s bad faith cannot be proved. As such, the bad faith of the defendant cannot be mentioned and bad faith compensation cannot be awarded against him. The fact that the court has ruled bad faith compensation against the defendant by ignoring this aspect is contrary to the procedure and the law and requires reversal.”
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