Objection To Debt Petition, Content, Procedures And Principles, Duration, Notification
SUPREME COURT OF APPEALS 13th Civil Chamber
2016/22543 E.
2017/5094 K.
COURT: Civil Court of First Instance
Following the trial of the case for the cancellation of the objection between the parties, the judgment dismissing the case for the reasons stated in the decision was appealed by the plaintiff’s attorney within the time limit. The case file was reviewed, and the matter was discussed and considered.
DECISION
The plaintiff claims that the defendant owes him 4,691.15 TL based on the invoice dated 10/29/2013, and 6,565.00 TL based on the invoice dated 18/11/2013, and that the enforcement proceedings initiated to collect these debts were suspended due to the defendant’s unjust objection. The plaintiff requested that the objection be dismissed and that compensation for denial be awarded.
The defendant requested that the case be dismissed.
The court ruled that the claim was not filed within the one-year period and therefore dismissed the request for cancellation of the objection on the grounds of the time limit; the plaintiff appealed the ruling.
The plaintiff requested the cancellation of the objection to the enforcement proceedings initiated for the collection of the receivable based on the invoice in the present case. The court ruled that the debtor objected to the debt on 05/08/2014 within the time limit, the enforcement proceedings were suspended on 06/08/2014, the decision to suspend the enforcement proceedings was served on the creditor’s representative on 01/09/2014, and that the lawsuit was filed on 09/11/2015, after the one-year statute of limitations had expired, and therefore dismissed the case. Upon examination of the enforcement file, it was understood that the objection to the debt and the decision to suspend the enforcement proceedings were served directly to the plaintiff/creditor on September 1, 2014, but that the enforcement proceedings were initiated by the plaintiff’s attorney. According to the first paragraph of Article 11 of the Notification Law, in cases pursued through a representative, the notification is made to the representative. Therefore, in a case pursued through a representative, it is unlawful to make the notification to the principal. Given that the enforcement proceedings in question were initiated and pursued by the plaintiff creditor’s attorney, the service of process made to the plaintiff principal is invalid and cannot be taken as a basis for determining the one-year limitation period. Therefore, the Court should have considered that the notification made to the plaintiff principal is invalid and that the case was filed within the time limit, examined the merits of the case, and rendered a decision based on the outcome of that examination. The written decision rendered based on the contrary reasoning is contrary to procedure and law and requires reversal.
CONCLUSION: For the reasons explained above, the judgment is REVERSED in favor of the plaintiff, the prepaid fee of TL 29.20 shall be refunded upon request, and pursuant to Article 440/III-1 of the Code of Civil Procedure, the decision is final and cannot be appealed. It was unanimously decided on 04/27/2017.
CASSATION COURT 12th Civil Chamber
2016/8792 E.
2016/26089 K.
COURT: Enforcement Court
Upon the debtor’s request for an appeal review of the court decision dated and numbered above within the specified 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 reading and examining all the documents in the file, the matter was discussed and considered:
The creditor initiated proceedings against the debtor based on a promissory note through attachment specific to bills of exchange. In the application made to the enforcement court by the debtor company within the statutory five-day period, it was claimed that the promissory note amount was paid before the due date, and that a payment receipt was submitted in this regard, and that the debtor objected to the debt, claiming that there was no debt owed to the creditor. It is understood that the court rejected the objection on the grounds that the signature on the payment receipt submitted to the file as proof of payment was denied by the defendant, and that the issue of whether the signature was made by the defendant required a trial.
Pursuant to Article 169/a-1 of the Enforcement and Bankruptcy Law, if it is proven by an official document or a document bearing an acknowledged signature that there is no debt or that it has been extinguished or waived, the court shall accept the objection. On the other hand, according to the established case law of our Chamber, in order for the payment document submitted to be accepted as relating to the debt subject to enforcement, the document must explicitly refer to the basis for enforcement.
Article 169/a-3 of the EBC states: “If the signature under the document presented by the debtor is denied by the creditor, the enforcement court judge, upon examination in accordance with the procedure set forth in Article 68/a, shall, if satisfied that the signature belongs to the creditor, decide to accept the debtor’s objection and sentence the creditor to a fine equal to ten percent of the value or amount to which the said document relates…”
In the specific case, based on a promissory note worth 15,000.00 TL, the creditor initiated proceedings against the debtor on 15/07/2015 for 13,000.00 TL. The payment receipt dated 06/06/2015, signed by the creditor … signed and dated 06/06/2015, it was stated that payment was made based on a promissory note dated 24/4/2015, payable on 15/06/2015, in the amount of 15,000.00 TL. However, the creditor’s representative claimed in their petition dated 02/11/2015 that the signature on the payment receipt was not made by the creditor and denied the signature.
In this case, the court, by obtaining the original payment receipt submitted by the debtor as an attachment to the petition and applying the procedure set forth in Article 68/a of the same Law, as referred to in Article 169/a-3 of the Enforcement and Bankruptcy Law, an examination should have been conducted on the original document to determine whether the signature was made by the creditor … and a decision should have been made based on the outcome. Therefore, the written judgment based on an incomplete examination is incorrect.
CONCLUSION: The debtor’s appeal is accepted, and the court’s decision is REVERSED pursuant to 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. The decision may be appealed within 10 days of the notification of the judgment. was unanimously decided on 26.12.2016.
CASSATION COURT 12th Civil Chamber
2016/8509 E.
2016/25564 K.
COURT: Enforcement Court
Upon the debtor’s request for an appeal review of the court decision dated and numbered above within the specified 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 reading and examining all the documents in the file, the matter was discussed and considered:
In the enforcement proceedings initiated by the creditor based on the promissory note through attachment specific to bills of exchange; it is understood that the debtor applied to the enforcement court, objecting to the debt and all its accessories, and the court decided that there was no need to rule on the request on the grounds that it did not concern a matter within the jurisdiction and competence of the court and that it was a petition of objection to a debt that had to be submitted to the enforcement office within 7 days from the notification of the payment order.
In enforcement proceedings through attachment specific to bills of exchange, the provisions of Articles 167-170/b of the Enforcement and Bankruptcy Code (EBC) apply. Pursuant to Article 168/5 of the EBC, in enforcement proceedings by attachment specific to bills of exchange, the debtor shall notify the enforcement court within 5 days by means of a petition that he/she is not indebted or that the debt has been discharged. The enforcement court shall examine and evaluate whether this objection is valid and render a decision.
In the present case, it is seen that the payment order was served on the debtor on August 3, 2015, and the debtor’s representative notified the enforcement court of his objections to the debt within the statutory five-day period (on August 10, 2015) in accordance with Article 168/5 of the Enforcement and Bankruptcy Code.
Therefore, while the court should have examined the merits of the case and rendered a positive or negative decision, it is inappropriate to render a written judgment based on unfounded reasoning without considering the above-mentioned provisions of the law.
CONCLUSION: The debtor’s appeal is accepted, and the court’s decision is overturned ex officio pursuant to 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. The right to appeal the decision within 10 days from the date of notification of the judgment remains open. was unanimously decided on 19/12/2016.
CASSATION COURT 12th Civil Chamber
2016/4228 E.
2016/6466 K.
COURT: Enforcement Court
Upon the debtors’ request for an appeal review of the court decision dated and numbered above within the prescribed period, 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 reading and examining all the documents in the file, the matter was discussed and considered:
The creditor initiated enforcement proceedings against the debtors based on 9 promissory notes through attachment specific to bills of exchange. In their application to the enforcement court within the statutory 5-day period, the debtors objected to the jurisdiction and claimed that the creditor company’s representative … had issued a letter of release regarding the promissory notes on which the proceedings were based and that they had no debt to the creditor, thereby objecting to the debt. It is understood that the court rejected the objection on the grounds that the jurisdiction clause in the promissory notes was valid and that the objection to the debt could not be proven in accordance with the procedure specified in Article 169/a of the Enforcement and Bankruptcy Law.
Pursuant to Article 169/a-1 of the Turkish Code of Civil Procedure (TCCP), if it is proven by an official document or a document bearing a certified signature that the debt does not exist or has been discharged or waived, the court shall accept the objection. On the other hand, according to the established case law of our Chamber, in order for the payment document submitted to be accepted as relating to the debt subject to enforcement, the document must explicitly refer to the basis for enforcement.
In the present case, enforcement proceedings were initiated against the debtors on August 29, 2014, based on nine promissory notes, each with a value of 10,000 TL. The release dated March 21, 2014, submitted as an attachment to the objection to the debt and signed on behalf of the creditor company by D. C., states: it is understood that, with clear reference to the issuers, beneficiaries, guarantors, dates of issue, maturity dates, and amounts of the promissory notes on which the enforcement is based, it is stated that there are no rights or claims arising from the promissory notes, that the debtors are released to the fullest extent, and that the originals of the promissory notes will be sent to the debtors by courier. Regarding this release, which is the basis for the objection to the debt, it is understood that the creditor’s representative stated in the hearing dated 27.01.2015 that “we do not accept the release…” and therefore has no objection to the signature on the release. According to the legal regulation in Article 169/a-3 of the Enforcement and Bankruptcy Law, since the signature on the release presented by the debtor is not explicitly denied by the creditor, it is not necessary to examine this signature in accordance with Article 68/a of the same Law. Since there is no explicit denial of the signature under the release, the creditor is deemed to have acknowledged the signature under the release.
Therefore, the court should have decided to accept the objection to the debt because it was proven by the document whose signature was deemed to have been acknowledged, and it was inappropriate to issue a written judgment.
CONCLUSION: The debtors’ appeals are accepted, and the court’s decision is overturned for the reasons stated above, in accordance with Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure. The advance fee shall be refunded upon request. The decision may be appealed within 10 days of the notification of the judgment. was unanimously decided on 07/03/2016.
CASSATION COURT 12th Civil Chamber
2015/29864 E.
2016/6686 K.
COURT: Enforcement Court
Upon the creditor’s request for an appeal review of the court decision dated and numbered above within the specified 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 reading and examining all the documents in the file, the matter was discussed and considered:
In the summary enforcement proceedings initiated by the creditor against the debtor, the creditor applied to the enforcement court, arguing that although the debtor’s objection to the enforcement office was not within the legal time limit, it was not correct for the enforcement office to suspend the proceedings, and requested the cancellation of the enforcement office’s decision dated May 15, 2015, regarding the suspension of the proceedings. The court ruled to dismiss the complaint on the grounds that the date of the objection should be accepted as April 29, 2015, based on the transfer date in the objection petition and the date written on the power of attorney fee receipt in the enforcement file, and that the enforcement office’s subsequent assignment of a correspondence number would not result in consequences against the debtor.
Pursuant to Article 8 of the Enforcement and Bankruptcy Code and Article 22/2 of the Enforcement and Bankruptcy Code Regulation, enforcement and bankruptcy offices shall prepare a record of the requests and statements made to them in connection with their transactions. Oral objections, requests, and statements shall be signed by the parties concerned and the enforcement director or his assistant or clerk.
The objection petition to the payment order must be forwarded to the enforcement officer and recorded in the enforcement minutes. This is because the date of objection to the payment order is not the date on the objection petition, but the date on which this petition is entered into the enforcement record (HGK.13.5.2009 dated and 2009/12-185 E.- 2009/182 K).
In the specific case, … In the enforcement file numbered 2015/581, upon the notification of the sample 7 payment order to the debtor on 25.4.2015, the enforcement directorate issued a decision on 15.5.2015 regarding the debtor’s objection petition dated 29.4.2015, and the debtor’s representative … Although the enforcement proceedings were suspended due to the objection being timely, as it was stated that the objection petition dated May 12, 2015, numbered 2015/516 Muh., sent through the Enforcement Directorate, was filed in the case file; it is observed that the objection petition was recorded in the UYAP system after the 7-day period following the notification of the payment order on May 12, 2015, and that the power of attorney fee receipt in the enforcement file does not contain a file number indicating that it relates to the enforcement file subject to the complaint. In this case, based on the current file, it is not possible to accept the date written on the objection petition as the date of objection based on the reasons stated in the court decision.
Therefore, since the debtor’s objection to the debt was sent to the relevant enforcement office by correspondence, the court… It should have been determined whether the debtor’s attorney’s petition to object to the debt, registered under Enforcement Office No. 2015/516 Muh., was recorded in the correspondence register of the aforementioned enforcement office, and a decision should have been made accordingly. However, the written judgment is incorrect due to insufficient investigation.
CONCLUSION: The creditor’s appeal is accepted, and the court’s decision is REVERSED in accordance with Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure for the reasons stated above. The advance fee shall be refunded upon request. The decision may be appealed within 10 days of the notification of the judgment. The decision was made unanimously on March 8, 2016.