Case for Negative Determination by Opening Times
A. Action for Negative Decision Filed Before Enforcement Follow-up:
In this case, while no enforcement proceedings have been initiated against the debtor; A negative declaratory action can be filed against a person who threatens to pay a debt that does not actually exist . If the legal situation of the debtor is in danger in the negative clearance lawsuit filed before the follow-up, or if the legal relationship between the parties contains uncertainty 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 legal benefit.
As a rule , the negative declaratory action does not affect the enforcement proceedings and does not stop the proceedings . However ; Upon request, the court may issue an interim injunction regarding the suspension of the enforcement proceedings, in return for a security not less than fifteen percent of the receivable (EİK. m.72/2). Compensation cannot be awarded in a negative declaratory action filed before the execution proceeding. Because in order for compensation to be awarded, there must be an unjust and malicious prosecution.
If the court hearing the negative declaratory action is of the opinion that the lawsuit was 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 requests his debt by issuing a warning letter, it cannot be accepted that this warning reveals the seriousness of the demand. In this case , in order to determine whether the plaintiff debtor has a legal interest in filing a negative declaratory action , the nature of the document in the hand of the creditor must be determined . For example , if the creditor has requested a debt without relying on any document in his warning , the debtor has no legal interest in filing a negative declaratory action on this warning . Because the debtor has the opportunity to stop the proceedings by objecting to the proceeding without judgment, which the creditor initiated without relying on any documents.
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 legal interest in filing a negative clearance lawsuit.
Before the execution proceeding , if the creditor has a serious document against the debtor , a negative declaratory action can be filed . In the doctrine, if there is a document that is strong enough to remove the objection to be made by the debtor after the prosecution is opened, it is accepted that the debtor has a legal interest in filing a negative declaratory action. The debtor can file a negative declaratory action regarding the disability in the debt relationship.
“Article 68 – (Amended: 18/2/1965-538/38 art.) (Amended first paragraph: 17/7/2003-4949/16 art.)”
“If the follow-up of the creditor whose demand is contested is based on a receipt or document that is duly issued within the authority of official offices or competent authorities, or in a year containing the acknowledgment of the debtor whose signature is acknowledged or notarized…”
“19th Civil Chamber of the Supreme Court, E. 2014/7626, K. 2015/4782, T. 6.4.2015”
”…With the notary notice dated 4.2.2011 sent to the plaintiff by the defendant bank, the letters of guarantee and 20 check sheets of the plaintiff were requested to be returned to the bank. After this return, there was no other warning regarding the same issue filed by the defendant bank to the plaintiff, nor was there any enforcement proceeding that included these issues. As such, there is no legal benefit for the plaintiff to file a negative declaratory action due to the letters of guarantee and check sheets returned before the lawsuit. Since the legal benefit is one of the conditions of the case, it should be observed ex officio…’
B) Action for Negative Decision Filed After Execution Proceedings:
The debtor may file a negative declaratory action to determine that he is not indebted even after the follow-up. In this case, the debtor must have a legal interest. Even if the debtor stops the proceedings as a result of the objection, due to the threat of being the subject of the action for the annulment of the objection or the removal of the objection in the future; It is necessary to accept that there is a legal benefit in filing a negative declaratory action . In a negative declaratory action filed after the enforcement proceedings, it cannot be decided to stop the proceedings by means of interim injunction. However, a security not less than 15% of the receivable can be deposited, and with an interim injunction, it can be ensured that the money entering the execution cashier at the end of the proceedings is not paid to the creditor. In the event that the court gives an interim injunction, foreclosure is prevented and the money is not paid to the creditor in return for the security until the end of the case. Apart from this, as a rule, it is not possible to prevent a foreclosure or sale with precautionary measures. As a matter of fact , the decisions of the Supreme Court are in this direction .
“Court of Appeals General Assembly, M. 2011/19-622, K. 2012/9, T. 18.1.2012”
”…While it is accepted that the debtor can file a negative declaratory action against the person who threatens him with a debt, considering a possible follow-up that can be made even before the execution proceeding, even to “detect that he does not have such a debt”, it is accepted that the debtor who has an ongoing enforcement proceedings There is no doubt that he has a legal interest in filing the case, and there is no reason for him to open such a case.
a there are no legal obstacles. The fact that the creditor does not have the documents listed in Article 68 of the İ.İ.K. For this reason, there is a legal benefit in filing a negative declaratory action…”
“ARTICLE 72/III In the case of negative determination filed after the enforcement proceedings, it cannot be decided to stop the proceedings by means of interim injunction. However, the debtor may request the court not to give the money in the execution cashier to the creditor by means of interim injunction, in return for covering the damages arising from the delay and in return for a guarantee not less than fifteen percent of the receivable. If the negative declaratory action is filed based on the alleged fraud, HMK m. Particular attention should be paid to the first paragraph of 209. Transactions carried out based on the alleged fraudulent deed will also cease. Therefore, the enforcement proceedings initiated on the basis of this year also cease. This provision is imperative. “
ARTICLE 209
“(1) When the writing or signature on an ordinary bill is denied, that bill cannot be taken as a basis for any transaction until a decision is made on the matter.
(2) When the writing or signature on the official bills is denied, if the falsity of the writing or signature on the bill is proven only by a court decision, this bill cannot be taken as a basis for any transaction.
(3) The precautionary measure given on the basis of the deed is not affected by the allegation of forgery about that deed, and the deed owner may request new measures to protect his rights when necessary.”
NEGATIVE DETECTION ACTION PROCEDURE
Negative declaratory action regulated in Enforcement and Bankruptcy Law is subject to general provisions in terms of both substantive law and procedural law. Since the case is subject to general provisions, the provisions of the Code of Civil Procedure will apply8.
The competent court in negative clearance cases filed after enforcement proceedings is the court of the defendant’s place of residence or the court of the place where the enforcement proceeding is carried out.
While the debtor is objecting to the payment order and the objections and pleas that he did not report in the enforcement court, he may also put forward in the negative clearance action.
DURATION IN NEGATIVE DETERMINATION
The person who has not objected to the follow-up or has to pay the money that he does not owe due to the cancellation of his objection may apply to the court within one year from the date of payment and request the refund of the money.
The fee to be paid in the lawsuit is calculated over the cost of the lawsuit, that is, it is a relative fee. Likewise, the attorney’s fee will be calculated at the end of the lawsuit based on the legal rates.
As a result of the lawsuit in question, 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 .
