Case Regarding the Issuance of a Negative Decision Based on Opening Hours
A. Case Regarding a Negative Decision Issued Prior to Enforcement Proceedings:
In this situation, where enforcement proceedings have not yet been initiated against the debtor, a negative determination case may be filed against a person threatening to pay a debt that does not actually exist. In a negative determination lawsuit filed prior to enforcement, if the debtor’s legal situation is at risk or if the legal relationship between the parties is uncertain and the uncertainty will be eliminated by the decision to be rendered as a result of the lawsuit to be filed, legal benefit should be accepted.
As a rule, a negative determination lawsuit does not affect enforcement proceedings and does not suspend them. However, the court may, upon request, issue a provisional measure decision to suspend enforcement proceedings in exchange for security of not less than fifteen percent of the claim (EİK. m.72/2). No damages may be awarded in a negative determination lawsuit filed prior to enforcement proceedings. This is because the existence of an unjust and malicious prosecution is required for damages to be awarded.
If the court hearing the negative determination lawsuit concludes that the lawsuit was filed to delay the collection of the claim, it must reject the request for a precautionary measure.
If the creditor demands payment of the debt by means of a formal notice, this notice cannot be considered as demonstrating the seriousness of the claim. In this case, in order to determine whether the plaintiff debtor has a legal interest in filing a negative determination lawsuit, the nature of the document in the creditor’s possession must be determined. For example, if the creditor does not refer to any document in the formal notice
If the creditor has made a claim without any supporting evidence, the debtor has no legal interest in filing a negative determination lawsuit based on this demand. This is because the debtor has the right to object to the creditor’s unsupported enforcement proceedings and halt them.
If the creditor has a promissory note or one of the documents listed in Article 68 of the Enforcement and Bankruptcy Law, it should be accepted that the debtor has a legal interest in filing a negative determination lawsuit.
If the creditor has a serious document against the debtor prior to enforcement proceedings, a negative determination lawsuit may be filed. In doctrine, if there is a document strong enough to eliminate the objection that the debtor will make after the proceedings are initiated, it is accepted that the debtor has a legal interest in filing a negative determination lawsuit. The debtor may file a negative determination lawsuit regarding the invalidity of the debt relationship.
“Article 68 – (Amended: 18/2/1965-538/38) (Amended first paragraph: 17/7/2003-4949/16)”
“If the objectionable creditor’s claim is based on an authority granted by official agencies or competent authorities, or on a receipt or document issued within one year containing the debtor’s confirmation, which is accepted as authentic or certified by a notary public…”
“Supreme Court of Appeals, 19th Civil Chamber, E. 2014/7626, K. 2015/4782, T. 6.4.2015”
“…The defendant bank requested the return of the plaintiff’s letters of guarantee and 20 checkbooks to the bank via a notarial notice dated February 4, 2011, sent to the plaintiff. After this return, the defendant bank did not send the plaintiff another warning letter on the same matter, nor did it initiate any enforcement proceedings concerning these matters. Therefore, there is no legal benefit for the plaintiff to file a negative determination lawsuit due to the guarantee letters and checkbooks returned before the lawsuit. Since legal benefit is one of the conditions of the lawsuit, it must be considered ex officio…”
B) Negative Determination Lawsuit Filed After Enforcement Proceedings:
The debtor may file a negative determination lawsuit after the proceedings to determine that they are not indebted. In this case, the debtor must have a legal benefit. Even if the debtor suspends the proceedings as a result of the objection, it must be accepted that there is a legal benefit in filing a negative determination lawsuit due to the risk of the objection being subject to a lawsuit for cancellation or removal in the future.
In a negative determination lawsuit filed after enforcement proceedings, a decision cannot be made to suspend the proceedings through a precautionary measure. However, security may be deposited in an amount not less than 15% of the claim, and through provisional measures, it may be ensured that the money entering the enforcement office at the end of the proceedings is not paid to the creditor. If the court decides on provisional measures, the seizure process is prevented, and no money is paid to the creditor against the security until the end of the case.
Other than that, as a rule, it is not possible to prevent seizure or sale with precautionary measures. Indeed, the decisions of the Court of Cassation are also in this direction.
“Court of Cassation General Assembly, M. 2011/19-622, K. 2012/9, T. 18.1.2012”
“…While it is accepted that the debtor may file a negative determination lawsuit ”to establish that he/she does not have such a debt,” taking into account a possible enforcement action that may be taken even before the commencement of enforcement proceedings against the person threatening him/her with debt, it is clear that the debtor subject to ongoing enforcement proceedings has a legal interest in filing the lawsuit and that there is no reason for him/her to file such a lawsuit.
a) There is no legal obstacle. There is legal benefit in filing a negative determination lawsuit due to the creditor not having the documents listed in Article 68 of the Enforcement and Bankruptcy Code…”
“ARTICLE 72/III In the event of a negative determination filed after enforcement proceedings, a decision cannot be made to suspend the proceedings by way of a provisional measure. However, the debtor may request the court, by way of a provisional measure, not to pay the money in the enforcement office to the creditor in exchange for covering the damage arising from the delay and obtaining security of not less than fifteen percent of the claim. Particular attention should be paid to HMK Article 209/1 if the negative determination lawsuit is filed based on alleged fraud. Transactions made due to the alleged fraudulent document are also suspended. Therefore, enforcement proceedings initiated based on this document are also suspended. This provision is mandatory in nature.”
ARTICLE 209
“(1) If the writing or signature on a simple promissory note is rejected, this note cannot be used as a basis for any proceedings until a decision is made.
(2) In the event of a denial of the writing or signature on official documents, if the forgery of the writing or signature on the documents is only established by a court decision, these documents cannot be used as a basis for any proceedings.
(3) A provisional measure granted based on a title deed shall not be affected by an allegation of forgery regarding that title deed, and the title holder may request new measures to protect their rights when necessary.”
NEGATIVE DETERMINATION ACTION PROCEDURE
The negative determination lawsuit regulated in 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 apply.
In negative determination lawsuits filed after enforcement proceedings, the competent court is the court of the defendant’s place of residence or the court where the enforcement proceedings are conducted.
The debtor may raise objections in a negative determination lawsuit that they did not raise in the payment order or in the enforcement court.
TIME LIMIT FOR NEGATIVE DETERMINATION
A person who did not object to the enforcement request or who was forced to pay money they did not owe due to the cancellation of their objection may apply to the court within one year from the date of payment to request a refund.
The fee payable in the case is calculated based on the cost of the case, meaning it is a proportional fee. Similarly, the attorney’s fee will also be calculated according to legal rates at the end of the case.
The outcome of the case will determine whether there is a legal basis for the debt relationship, and the necessary procedures will be carried out for collection. To avoid any loss of rights, both parties must be represented by an attorney who is an expert in their field.