Negative Detection Cases According To The Opening Time
Negative Detection Lawsuits According to Opening Times
A. Negative Determination Case Filed Before Execution Proceedings:
In this case, while an enforcement proceeding has not yet been initiated against the debtor, a negative declaration case can be filed against the person who threatens to pay a debt that does not actually exist. If the legal status of the debtor is in danger or the legal relationship between the parties is uncertain and the uncertainty will be eliminated with the decision to be made as a result of the lawsuit to be filed, it should be accepted that there is a legal benefit.
As a rule, the negative declaration lawsuit does not affect the enforcement proceedings and does not stop the proceedings. However, the court may, upon request, issue an interim injunction to stop the enforcement proceedings in return for a collateral not less than fifteen percent of the receivable (Art. 72/2 of the BEC). Compensation cannot be awarded in the negative declaration case filed before the enforcement proceedings. This is because there must be an unfair and malicious enforcement proceeding in order to award compensation.
If the court hearing the negative declaration case concludes that the lawsuit is filed with the aim of delaying the collection of the receivable, it should reject the request for interim injunction.
In the event that the creditor demands the receivable by issuing a notice, it cannot be accepted that this notice only demands the receivable and that this notice reveals the seriousness of the claim. In this case, in order to determine whether the plaintiff debtor has a legal interest in filing a negative declaration action, the nature of the document in the creditor’s possession must be determined. For example, if the creditor has made a claim without relying on any document in its notice, the debtor has no legal interest in filing a negative assessment action upon this notice. Because the debtor has the opportunity to stop the proceeding by objecting to the proceeding without judgment initiated by the creditor without relying on any document.
If the creditor has a promissory note or one of the documents listed in Article 68 of the EBL, it should be accepted that the debtor has a legal interest in filing a negative assessment action.
If the creditor has a serious document against the debtor before the enforcement proceedings, a negative assessment action can be filed. In the doctrine, it is accepted that the debtor has a legal interest in filing a negative assessment action if there is a document that is strong enough to remove the objection to be made by the debtor after the enforcement proceedings are opened. The debtor may file a negative declaration lawsuit regarding the disabilities in the debt relationship.
“Article 68 – (Amended: 18/2/1965-538/38 Art.) (Amended first paragraph: 17/7/2003-4949/16 Art.)”
“If the proceeding of the creditor whose claim is objected to is based on a deed containing an acknowledgment of debt whose signature is affirmed or notarized, or on a receipt or document duly issued by official offices or competent authorities within their jurisdiction…”
“19th Civil Chamber of the Court of Cassation, E. 2014/7626, K. 2015/4782, T. 6.4.2015″
”…With the notary notice dated 4.2.2011 sent by the defendant bank to the plaintiff, the plaintiff was requested to return the letters of guarantee and 20 check sheets to the bank, and upon this notice, the plaintiff returned the letters of guarantee and check sheets to the defendant bank before the lawsuit was filed. After this return, there was no other notice drawn by the defendant bank to the plaintiff regarding the same issue, nor was there any enforcement proceeding involving these issues. As such, there is no legal interest for the plaintiff to file a negative declaration lawsuit for the letters of guarantee and check sheets returned before the lawsuit. Since legal interest is one of the conditions of the lawsuit, it should be considered ex officio…’
B) Negative Determination Lawsuit filed after the Execution Proceedings:
The debtor may file a negative declaration lawsuit after the enforcement proceedings to determine that he/she is not a debtor. In this case, the debtor must have legal interest. Even if the debtor stops the proceedings as a result of the objection, it is necessary to accept that he has legal interest in filing a negative determination lawsuit, since he is under the threat of being subjected to the cancellation of the objection or the removal of the objection in the future. In the negative declaration case filed after the enforcement proceedings, it cannot be decided to stop the proceedings by way of interim injunction. However, by depositing a collateral not less than 15% of the receivable and with the interim injunction decision, it can be ensured that the money entering the execution cashier’s office at the end of the enforcement proceedings is not paid to the creditor. In the event that the court grants an interim injunction, the seizure is prevented and the money is not paid to the creditor until the end of the case in return for the collateral. Apart from that, it is not possible to prevent seizure or sale with an interim injunction. As a matter of fact, the decisions of the Court of Cassation are in this direction.
“Court of Cassation General Assembly of Civil Chambers , E. 2011/19-622, K. 2012/9, T. 18.1.2012″
”…While it is accepted that the debtor may file a negative declaration lawsuit against the person who threatens him with a debt, even for “determining that he does not have such a debt”, considering a possible execution proceeding that may be made before the execution proceeding is initiated against him, there is no doubt that the debtor who has an ongoing execution proceeding against him has a legal interest in filing this lawsuit, and there is no legal obstacle to file such a lawsuit. The fact that the creditor does not have the documents listed in Article 68 of the Code of Enforcement and that the debtor stops the enforcement proceedings initiated against the debtor by objecting to the enforcement proceedings initiated against the debtor is not sufficient to accept that the debtor does not have legal interest in filing a negative determination lawsuit, and even in this case, the debtor is under the threat of debt and therefore has legal interest in filing a negative determination lawsuit…”
“ARTICLE 72/III In the negative determination lawsuit filed after the execution proceeding, it cannot be decided to suspend the execution proceeding by way of interim injunction. However, the debtor may request the court not to give the money in the execution cashier’s office to the creditor by way of interim injunction in order to cover the damages arising from the delay and against a security not less than fifteen percent of the receivable. If the negative assessment action is filed based on the claim of forgery, the first paragraph of Article 209 of the CCP should be taken into consideration. The proceedings based on the allegedly forged promissory note shall also cease. Therefore, the enforcement proceedings initiated on the basis of this deed shall also cease. This provision is mandatory. ”
ARTICLE 209
“(1) Where the writing or signature in an ordinary deed is denied, that deed may not be taken as a basis for any transaction until a decision is rendered in this regard.
(2) When the writing or signature on an official deed is denied, that deed may not be taken as a basis for any transaction only if the forgery of the writing or signature is established by a court decision.
(3) The interim injunction granted on the basis of a promissory note shall not be affected by the allegation of forgery of the promissory note, and the holder of the promissory note may request new measures to protect his rights, if necessary.”
PROCEDURE FOR NEGATIVE DECLARATION CASE
The negative assessment action regulated under the Enforcement and Bankruptcy Law is subject to general provisions in terms of both substantive law and procedural law. Since the lawsuit is subject to general provisions, the provisions of the Code of Civil Procedure shall apply8 .
The competent court for negative declaration actions filed after the enforcement proceedings is the court of the defendant’s domicile or the court of the place where the enforcement proceedings are filed.
The debtor may also assert the objections and defenses that he did not declare when objecting to the payment order and before the enforcement court in the negative declaration case.
TIME LIMIT FOR NEGATIVE DECLARATION PROCEEDINGS
A person who is obliged to pay a sum of money that he does not owe because he has not objected to the proceedings or because his objection has been lifted may apply to the court within one year from the date of payment and request the recovery of the money.
The fee to be paid in the lawsuit is calculated on the amount of the lawsuit, that is, it is a proportional fee. Likewise, the attorney fee will be calculated at the end of the case according to the legal rates.
As a result of the lawsuit, it will be determined whether the debt relationship has a legal basis. Necessary actions will be taken for collection. In order to avoid loss of rights, both parties must be represented by an expert lawyer.
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