Cancellation Of Objection Case – Credit Card Debt – Decision Regarding The Observation That The Civil Court Of First Instance Has Jurisdiction Considering The Date Of The Case
T.C. JUDICIARY
19th Civil Chamber
Main: 2014/10262
Decision: 2014/14317
Date of Decision: 29.09.2014
ANNULMENT OF OBJECTION CASE – CREDIT CARD DEBT – CONSIDERING THE DATE OF THE CASE, IT IS NECESSARY TO OBSERVE THAT THE CIVIL COURT OF FIRST INSTANCE HAS JURISDICTION
SUMMARY: In the concrete case, considering the date of the lawsuit, it should be considered that the civil court of first instance has jurisdiction.
(2004 S. Code Art. 67) (6102 S. Code Art. 4, 5) (6762 S. Code Art. 4, 5) (4077 S. Code Art. 10/A, 22, 23) (6502 S. Code Art. 3, 4, 73, 83, Late Art. 1) (5411 S. Code Art. 142) (5464 S. K. art. 43, 44) (6100 S. K. art. 1, 2, 3, 4, 447) (1086 S. K. art. 1, 2, 3, 4, 5, 6, 7, 8) (YHGK. 07.02.2007 T. 2007/19-50 E. 2007/50 K.)
Case: At the end of the trial of the annulment of the objection case between the parties, the file was examined upon the appeal of the defendant within the period of the judgment given for the partial acceptance and partial rejection of the case for the reasons written in the judgment:
Decision: The plaintiff’s attorney stated that a credit card membership agreement was concluded between the parties, the enforcement proceedings initiated over 6.142,41 TL due to the defendant’s failure to pay the credit card debt were stopped with the defendant’s unfair objection, and requested and sued for the cancellation of the objection.
The defendant requested the dismissal of the lawsuit.
According to the evidence gathered by the court, it was decided to partially accept the case, partially cancel the objection, and to continue the proceeding over a total of 6.021,56 TL, on the grounds that the defendant’s objection of 6.021,56 TL was unfair, and the judgment was appealed by the defendant.
The dispute between the parties arises from the credit card debt obtained from the plaintiff bank.
It is controversial whether the competent court for the lawsuits to be filed by the card issuers (banks) against the cardholders is the commercial court of first instance or the civil court of first instance. Especially, the discussions on this issue have intensified after the relationship between the commercial courts of first instance and the civil courts of first instance and other civil courts was transformed from a division of labor relationship to a jurisdictional relationship as of 01.07.2012 pursuant to the amendment made to Article 5 of the Turkish Commercial Code No. 6102 by Law No. 6335.
At this point, in determining the court having jurisdiction over the lawsuits filed by the card issuers (banks) against the cardholders, it is deemed useful to make a brief explanation about the relevant legal regulations.
The first legal regulation on credit cards in Turkey was made with the Law No. 4822 published in the Official Gazette dated 14.03.2013 by adding Article 10/A titled “Credit Cards” to the Law No. 4077 on the Protection of Consumers. Thus, credit cards have been included within the scope of the Law No. 4077. Article 23 of the Law No. 4077 titled “Consumer Courts” stipulates that disputes arising from this law shall be heard by the consumer courts regardless of the title of the plaintiff.
Article 44 of the Bank Cards and Credit Cards Law No. 5464, which entered into force after being published in the Official Gazette dated 01.03.2006, differently from the regulation in the Law No. 4077, a duty regulation that varies according to the title of the plaintiff has been introduced.
According to Article 44/1 of the BKKKK No. 5464: “In case the cardholder is a consumer, the provisions of Articles 22 and 23 of the Law No. 4077 on the Protection of Consumers shall apply in disputes related to the implementation of this Law.” With the aforementioned legal regulation, the consumer courts are authorized to take jurisdiction in the lawsuits to be filed against the issuers (banks) by the cardholders who have the title of consumer due to credit card disputes.
Since there is a unity of practice on this issue, there has been no controversy.
The dispute arose in relation to the jurisdiction regulation in Article 44/2 of the BKKKK No. 5464. Two different opinions constitute the subject of the discussions. According to one opinion; since bank credit card agreements are among the banking transactions regulated in Article 4/1-f of the TCC No. 6102 and are considered as absolute commercial cases, the court in charge of the lawsuits filed by the issuers (banks) against the cardholders due to credit card disputes is the commercial court of first instance. According to another opinion; Article 44/2 of the BKKKK No. 5464 refers to the provisions of the Code of Civil Procedure No. 1086 regarding jurisdiction and competence, and pursuant to Article 447/2 of the CCP, “references to the Code of Civil Procedure No. 1086 shall be deemed to have been made to the articles of the Code of Civil Procedure that correspond to these provisions”, and Article 2 of the CCP states that “the value of the subject matter of the lawsuit shall be deemed to have been made to the articles of the Code of Civil Procedure that correspond to these provisions”. Article 2 of the CCP stipulates that “Unless otherwise stipulated, the competent court in cases related to property, regardless of the value and amount of the subject matter of the lawsuit, is the civil court of first instance”, and considering that commercial cases are regulated in the Turkish Commercial Code, not in the procedural laws, the competent court in the lawsuits to be filed by the card issuers against the card holders who have the title of consumer is the civil court of first instance.
As a matter of fact, in its decision dated 07.02.2007 and numbered 2007/19-50 E, 2007/50 K, the Civil General Assembly of the Court of Cassation clearly stated that the general courts, not the commercial courts, and in the concrete case, the civil court of first instance according to the value of the case, are in charge of the lawsuits to be filed by the banks against the card holders and adopted the second opinion.
In determining the jurisdiction, it would be beneficial to make a separate evaluation in terms of the cases filed during the period of the CPC numbered 1086, which was in force until 01.10.2011, and the CPC numbered 6100, which entered into force after this date.
To repeat, Article 44/2 of the BKKKK No. 5464 refers to “the provisions of the Code of Civil Procedure No. 1086 on jurisdiction and competence”. Articles 1-8 of the Code of Civil Procedure No. 1086, which was in force until 01.10.2011, regulate the provisions on jurisdiction. Pursuant to Article 8/1 of the Code of Civil Procedure, the court in charge of cases related to assets was determined according to the value of the case, and the cases that did not exceed the value stipulated in the law and increased according to the revaluation rate every year were to be heard in the civil courts of peace, and the cases over a certain value were to be heard in the civil courts of first instance. Furthermore, pursuant to Article 5 of the TCC in force at that time, since the relationship between the civil courts of first instance and the commercial courts of first instance was a division of labor relationship, the judge could not issue an ex officio referral decision on the grounds of lack of jurisdiction unless there was a division of labor objection in due time. If the judge continued the case and decided on the merits of the dispute despite the objection to the division of labor, it was not considered a ground for reversal on its own (Article 5 of the TCC No. 6762).
As such, considering the provisional Article 1 of the CCP No. 6100, which states that “The provisions of this law on jurisdiction and jurisdiction shall not apply to the cases filed before the entry into force of the law”, in the disputes before 01.10.2011, the provisions of Article 44/2 of the BKKKK No. 5464 shall not apply to the cases filed before 01.10.2011. Pursuant to Articles 1-8 of the Code of Civil Procedure No. 1086 with reference to Article 44/2 of the BKKKK No. 5464, it shall be determined that the courts of peace or the courts of first instance shall have jurisdiction according to the value of the case on the date of the lawsuit, but the provision regarding the division of labor objection in Article 5 of the TCC No. 6762 shall also be taken into consideration in determining the jurisdiction. From this point of view, although the general courts (courts of peace or civil courts of first instance according to the value of the case) shall have jurisdiction in the lawsuits to be filed by the banks against the cardholder before 01.10.2011, if the lawsuit is filed to the commercial court of first instance and the division of labor objection has not been filed in due time, the case shall be heard at the commercial court of first instance; however, if the division of labor objection has been filed in due time, it shall be decided to send the file to the court of general jurisdiction (court of peace or civil court of first instance).
The CCP No. 6100, which entered into force on 01.10.2011, has made the civil courts of first instance the main court in cases related to assets, without any distinction of amount, except for the exceptions specified in the laws, on the grounds that determining the duty according to the value of the case creates many problems in practice, this distinction is not practical and does not fully meet the needs. Accordingly, pursuant to Article 2/1 of the CCP, the court of first instance is the competent court for the lawsuits regarding the assets to be filed after 01.10.2011, regardless of the value of the case.
After 01.10.2011, when the CCP No. 6100 entered into force, Article 5 of the TCC No. 6102, which entered into force on 01.07.2012, was amended by the Law No. 6335 and the relationship between the commercial court of first instance, the civil court of first instance and other civil courts was transformed from a division of labor relationship to a duty relationship. Since the duty is related to public order, it must be observed ex officio by the court at every stage of the case. However, in the provisional article 10 added to the Law No. 6102 by the Law No. 6335, it has been ruled that the duty regulation will not affect the cases filed before the enforcement of this law.
In the face of these legal regulations, in the lawsuits filed by the card issuers (banks) against the card holders, pursuant to Article 44/2 of the Law No. 5464, a reference is made to the provisions of the Code of Civil Procedure No. 1086 regarding the duty and jurisdiction, and pursuant to Article 447/2 of the CCP, this reference will be deemed to have been made to the relevant provisions of the CCP, both in Articles 1-8 of the Code of Civil Procedure regarding the duty, and in Articles 1-4 of the CCP, the duties of general courts are regulated, and there is no regulation regarding the duty of commercial courts. Articles 1-8 of the Code of Civil Procedure and Articles 1-4 of the CCP regulate the duties of the general courts, but do not regulate the duties of the commercial courts, the duty of the commercial courts is regulated in Article 5 of the TCC No. 6102 (Article 5 of the TCC No. 6762), and Article 44/2 of the BKKKK No. 5464 does not make any reference to the provisions of the TCC regarding the duty, it should be accepted that the courts of peace or civil courts of first instance according to the value of the case for the cases before 01.10.2011, and the courts of first instance regardless of the value of the case for the cases after this date.
By the way, it is necessary to mention the exceptions to this rule. Article 2/1 of the CCP No. 6100 stipulates that “unless otherwise stipulated by law”. The contrary regulation is found in Article 142/1 of the Banking Law No. 5411 and Article 43 of the BKKKK No. 5464.
Indeed, Article 43 of the BKKKK No. 5464 stipulates that “The provisions of the second paragraph of Article 8, Article 9, Article 12, Article 24, Article 25, Article 26 and Article 44 of this Law shall not apply to corporate credit cards issued to merchants.” As can be seen, the legislator has adopted a different arrangement in terms of jurisdiction in disputes regarding credit cards issued to merchants and credit cards issued to consumers, and has exceptionally stipulated that the commercial courts of first instance shall have jurisdiction pursuant to Article 5 in accordance with the definition of commercial litigation in Article 4/1-6 of the TCC No. 6762 (Article 4/1-f of the TCC No. 6102) for credit cards issued to merchants.
It should be noted that if the legislator had intended that the lawsuits within the scope of Article 44/2 of the BKKKK No. 5464 would also be heard by the commercial courts of first instance, he would not have included this exception provision in Article 43 of the same law regarding corporate credit cards issued to merchants.
A second exception is provided by Article 142/1 of the Banking Law No. 5411. According to Article 142/1 of the Banking Law No. 5411, “The civil lawsuits to be filed by the Fund, the Fund banks and the bankruptcy and liquidation administrations of the banks whose operating license has been revoked shall be heard by the commercial court of first instance. In case there is more than one commercial court of first instance in that place, these cases shall be heard by the commercial court of first instance numbered (1) and (2).” Pursuant to the aforementioned legal provision, if the lawsuit arising from the credit card dispute is filed by the institutions, organizations, or banks stipulated in Article 142/1 of the Banking Law No. 5411, the competent court is the commercial court of first instance. If there is more than one commercial court of first instance in that place, the commercial courts of first instance numbered 1 and 2 shall have jurisdiction. Since the duty in the aforementioned legal provision is of public order and mandatory, it must be observed by the court ex officio.
As a result; for the lawsuits filed by the banks against the credit card holders until 01.10.2011 and excluding the above-mentioned exceptions, the court in charge is the court of peace or the court of first instance in the capacity of general courts according to the value of the case, and for the lawsuits after this date, the court of first instance regardless of the value of the case pursuant to Article 2/1 of the CCP No. 6100. As a matter of fact, this issue is clearly stated in the Decision of the Civil General Assembly of the Court of Cassation dated and numbered above.
Undoubtedly, the court in charge of bank credit card disputes that will arise after the entry into force of the Law No. 6502 on the Protection of Consumers, which was published in the Official Gazette dated 28.11.2013 and numbered 28835 and entered into force 6 months after its publication, should be determined within the framework of the provisions of Articles 3/1-k-j, 4/3, 73/1, 83/2 and provisional Article 1 of the said law.
Therefore, the court, without taking into consideration the provisions regarding the duty, has been required to make a written judgment by going into the merits of the matter.
Conclusion For the reasons explained above, it was unanimously decided on 29.09.2014 that the judgment shall be DISMISSED, the appellate objections of the defendant shall not be examined for the time being, and the advance fee shall be refunded upon request.