Allegations Of Forgery Do Not Stop Enforcement Proceedings
Summary:
Claiming that the document subject to enforcement is forged before or after the enforcement becomes final does not result in the suspension of enforcement pursuant to Article 209 of the Code of Civil Procedure. The aforementioned provision stipulates that the document cannot be used as a basis for any proceedings in general courts, in other words, it cannot be used as evidence, and therefore has no effect on enforcement proceedings.
Republic of Turkey
Supreme Court
12th Civil Chamber
Case No.: 2014/9285
Decision No.: 2014/11622
Date: April 21, 2014
Claiming the forgery of the promissory note subject to enforcement proceedings before or after the enforcement proceedings have become final does not result in the suspension of the enforcement proceedings pursuant to Article 209 of the Code of Civil Procedure. The aforementioned provision provides that the promissory note cannot be used as a basis for any proceedings in general courts, or in other words, it cannot be used as evidence, and it has no effect on enforcement proceedings. In the present case, it is understood that the request for the suspension of enforcement proceedings was rejected in the case before the Commercial Court of First Instance. Therefore, the court must accept the complaint.
CASE: Upon the creditor’s request for an appeal review of the court decision dated and numbered above within the prescribed time limit, the relevant file was sent from the local court to the chamber. After hearing the report prepared by the Review Judge for the case file and reviewing all the documents in the file, the matter was discussed and considered:
DECISION: The creditor initiated enforcement proceedings against the debtors through the attachment of negotiable instruments, the enforcement proceedings were finalized, and one of the debtors, H. T. B., applied to the Enforcement Directorate requesting the suspension of the enforcement proceedings due to the forgery case filed with the Denizli Criminal Court of First Instance regarding the instrument on which the enforcement proceedings were based. The Enforcement Directorate suspended the proceedings in accordance with Article 209 of the Code of Civil Procedure, and the creditor’s attorney filed a complaint with the court against this decision, which was rejected by the court.
Enforcement and bankruptcy law is procedural law governing enforcement and bankruptcy proceedings. The purpose of this branch of law is, on the one hand, to eliminate the difficulties that may be encountered by the debtor or third parties in order for the creditor to obtain their claim, and on the other hand, to find legal remedies to protect the debtor from malicious proceedings, while also protecting the interests of third parties affected by the proceedings and preventing the violation of human rights and freedoms during the execution of the proceedings. The most important source of enforcement and bankruptcy law is the Enforcement and Bankruptcy Code, which regulates the procedural rules that must be followed from enforcement and bankruptcy proceedings to collection.
The Code of Civil Procedure No. 6100 may be applied in cases where there is no provision in the Enforcement and Bankruptcy Law, provided that there is an explicit reference in the Enforcement and Bankruptcy Law (such as Articles 50 and 68/a-4 of the Enforcement and Bankruptcy Law) or that it does not conflict with the special or general provisions of this law (such as mandatory joint liability). In light of these principles, the impact of Article 209/1 of the Civil Procedure Code on enforcement proceedings without a judgment should be evaluated. According to this article, “when the writing or signature on an ordinary promissory note is denied, that promissory note cannot be used as a basis for any proceedings until a decision is made on the matter.” There is no provision in the Enforcement and Bankruptcy Code regarding the application of this article in enforcement proceedings.
In enforcement proceedings conducted through attachment specific to negotiable instruments, objections to the signature on the negotiable instrument subject to enforcement are specifically regulated in Article 170 of the Enforcement and Bankruptcy Code, so the general provision of Article 209 of the Civil Procedure Code cannot be applied to claims of signature denial. A signature objection does not suspend enforcement proceedings other than sale proceedings under Article 170/1 of the Enforcement and Bankruptcy Code. However, the enforcement court may decide to temporarily suspend the proceedings until it renders its decision on the objection (Article 170/2 of the Enforcement and Bankruptcy Code).
On the other hand, if the claim is based on a reason other than a signature objection (in writing), our Chamber held that Article 209 of the HMK should be applied since there is no provision in the Enforcement and Bankruptcy Code. However, following a change in precedent, it was determined that the claim based on the writing on the document constitutes an objection to the debt, and since this matter is regulated under Article 169/a of the Enforcement and Bankruptcy Code, it was concluded that Article 209 of the Civil Procedure Code does not apply in this regard either.
The enforcement court, by applying the special procedural rules established in the Enforcement and Bankruptcy Code, renders final decisions on objections and complaints brought before it in terms of enforcement law. Therefore, the decisions of the aforementioned court generally do not have the nature of a final judgment in a substantive sense. Therefore, during the examination of an objection to the debt or signature, the court cannot suspend the proceedings or decide to stay the execution. It may only decide to temporarily suspend the enforcement proceedings until its decision on the merits of the objection, in accordance with Article 169/a-2 of the Enforcement and Bankruptcy Code. The fact that the enforcement court has rendered a decision regarding the debt subject to enforcement does not preclude the filing of a lawsuit in general courts regarding the same debt.
The case filed by the debtor is a lawsuit under Article 72 of the Enforcement and Bankruptcy Law, and enforcement proceedings may be suspended by a provisional measure decision obtained from the court in accordance with the procedure set forth in the aforementioned article. However, complaints filed with the public prosecutor’s office and lawsuits filed in criminal courts for reasons such as forgery do not automatically suspend enforcement proceedings and cannot be considered as pending issues. However, if the public prosecutor’s office or the criminal court issues a precautionary measure decision, the enforcement proceedings may be suspended.
In light of the principles and rules explained above, claiming that the document subject to enforcement is forged before or after the enforcement proceedings become final does not result in the suspension of the enforcement proceedings in accordance with Article 209 of the Code of Civil Procedure. The aforementioned provision stipulates that the document cannot be used as a basis for any proceedings in general courts, or in other words, it cannot be used as evidence, and therefore has no effect on enforcement proceedings.
In the present case, it is understood that the request for the suspension of enforcement proceedings was rejected by the Commercial Court of First Instance.
Therefore, while the court should have accepted the complaint, the decision to reject the complaint on the grounds that there was no procedural irregularity in the suspension of enforcement proceedings by the Enforcement Directorate in accordance with Article 209 of the Code of Civil Procedure (HMK), as the forgery of the document serving as the basis for enforcement was alleged in the Denizli 5th Criminal Court of First Instance and the Denizli 3rd Civil Court of First Instance, is incorrect.
CONCLUSION: The creditor’s appeal is accepted, and the court’s decision is reversed in accordance with Articles 366 of the Enforcement and Bankruptcy Code and 428 of the Code of Civil Procedure for the reasons stated above. The advance fee shall be refunded upon request, and the decision may be appealed within 10 days of the notification of the judgment. The decision was made by majority vote on April 21, 2014.