T.C. SUPREME
19.Legal Department

Mainly: 2014/10262
Verdict: 2014/14317
Decision Date: 29.09.2014

CASE FOR CANCELLATION OF APPEAL-CREDIT CARD DEBT – THE NEED TO OBSERVE THAT THE COURT OF FIRST INSTANCE IS IN CHARGE WHEN THE DATE OF THE CASE IS TAKEN INTO ACCOUNT

Abstract: considering the date of the case in a concrete case, it is necessary to observe that the court of first instance is in charge.

(2004 p. K. m. 67) (6102 P. K. m. 4, 5) (6762 P. K. m. 4, 5) (4077 P. K. m. 10 / A, 22, 23) (6502 P. K. m. 3, 4, 73, 83, late. m. 1) (5411 P. K. m. 142) (5464 S. K. m. 43, 44) (6100 P. K. m. 1, 2, 3, 4, 447) (1086 S. K. m. 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 case for the cancellation of the appeal between the parties, the case was reviewed by the defendant during the term of the provision given for the partial acceptance and partial rejection of the case for reasons written in the application, the file was examined, the need was spoken and considered:

Decision: attorney of the plaintiff, credit card membership agreement between the parties has been concluded, the defendant’s credit card debt due to the failure to pay over TL 6.142,41 enforcement proceedings initiated over the defendant’s unfair objection stopped by the decision to cancel the appeal requested and sued.

The defendant asked for the dismissal of the case.

According to the evidence collected by the court,it was decided to partially accept the case, partially cancel the appeal, continue the follow-up for a total of 6,021.56 TL on the grounds that the defendant’s appeal was unfair,and the verdict was appealed by the defendant.

The dispute between the parties arises from the credit card debt received from the plaintiff’s Bank and used.

It is debatable whether the court in charge of cases to be filed by card issuing organizations (banks) against cardholders is the Commercial Court of first instance or the court of First Instance. In particular, 5 of the Turkish Commercial Code No. 6102. in accordance with the amendment to the law No. 6335 in Article 01.07.2012, the relationship between the Commercial Courts of First Instance and the court of First Instance and other courts of law has been removed from the relationship of the Labor Department and turned into a relationship of duties.

At this point, it was useful to determine the court responsible for cases filed against card holders by card issuing organizations (banks), to make a brief statement on the legal regulations related to this issue.

The first legal regulation on credit cards in Turkey was made by adding Article 10/a entitled “credit cards” edge to the Law No. 4822 published in the Official Gazette dated 14.03.2013 and the Law No. 4077 on Consumer Protection. Thus, credit cards are covered by TKHK number 4077. 23 of Act 4077 entitled “Consumer Courts”. in its article, it is stipulated that disputes arising from this law will be heard in consumer courts, regardless of the adjective of the person who opened the case.

44 of the law on bank cards and Credit Cards No. 5464, which entered into force after being published in the Official Gazette dated 01.03.2006. in the article, unlike the regulation in the law No. 4077, a task arrangement has been made that varies according to the adjective of the person who opened the case.

5464 No. 44/1 of Bkkkk. according to Article: ”22 of the law on Consumer Protection No. 4077, if the card holder is a consumer in disputes related to the application of this law. and 23. the provisions of the articles apply.” According to the specified legal regulation, consumer courts have been appointed in cases to be filed against card issuers (banks) due to credit card disputes by cardholders who have the title of consumer.

There was no discussion as there was a unity of practice on this issue.

The debate was discussed in section 44/2 of No. 5464 Bkkkk. he has come across in relation to the regulation of duty in his article. Two different views constitute the subject of the discussions. According to an opinion; since bank credit card contracts are banking transactions organized in Article 4/1-f of the TTC No. 6102 and are considered absolute commercial cases, the court responsible for cases filed against card holders by organizations(banks) that issue cards due to credit card disputes is the Commercial Court of First Instance. According to another opinion; 5464 bkkkk 44/2. article 1086 refers to the provisions of Humk on duty and authority, and in accordance with Article 447/2 of HMK, “submissions to Humk 1086 will be considered to have been made to the articles of the Code of Civil Procedure that constitute the equivalent of these provisions”, HMK 2. in the article “the value of the assets without regard to the amount relating to the lawsuit and of the court unless there is a provision to the contrary in the case of the court” where they are connected to the provision of the business procedural law of the case, not laid out in compliance with the Turkish commercial code, when the consumer card holders by the card issuing institutions in charge of the capacity of the court to the court of first instance is filed against.

Indeed, the General Board of the Supreme Court and law 2007/19 date 07.02.2007-50 E,K 2007/50 in the decision of the banks commercial courts of the General Court of lawsuits filed against the card holder, according to the value of the case in a concrete case made it clear that it is the duty of the court of First Instance and a second opinion has been adopted.

In determining the task, it is useful to evaluate separately in terms of cases filed during the period of HUMK 1086, which remained in force until 01.10.2011, and HMK 6100, which entered into force after this date.

To repeat, No. 5464 is 44/2 of Bkkkk. article” the provisions of Humk No. 1086 on duty and authority ” was cited. The provisions of Humk No. 1086 on duty, which were in force until 01.10.2011, are 1-8 of the aforementioned law. it is regulated in its articles. Humk’s 8/1. according to the article, the value of assets-in-charge of the court case with regard to the case as prescribed by law and are determined according to each year, the revaluation rate not exceeding a value that is increased compared to the case of the magistrates ‘ courts, in the court case above a certain value were seen. In addition, 5 of the TCC in force at that time. according to the article, since the relationship between the courts of First Instance and the Commercial Courts of first instance is a relationship of the Labor Department, the judge could not make a decision to send re’sen, citing that he was out of office, unless there was an objection from the Labor Department during the period. The fact that the judge continued the case and decided on the basis of the dispute despite the appeal of the Labor Department was not considered the reason for the violation alone. (Article 5 of the TCC No. 6762).

As such, 6100 is HMK’s temporary 1. considering the provision in article “the provisions of this law on judicial path and duty do not apply in cases filed on the date before the entry into force of the law”, in disputes before 01.10.2011, 44/2 of Bkkk 5464. 1 to 8 of Humk 1086. according to the articles, it will be determined that magistrates or courts of first instance are in charge according to the value of the case at the date of the case, but 5 of the TCC No. 6762. the provision relating to the objection of the division of labour in the article shall also be observed in the determination of the duty. Based on this, 01.10.Of 2011 filed against the card holder by the bank before the date of the General Court (according to the value of the case, civil courts or civil) being in charge of the criminal case was opened at the time of the trade court and no objection has been made with regard to the division of Labor, the trade will be taken in the court of the criminal case, but the objection was filed in time, the division of labor of the file, if the general duty (civil or criminal law) to be sent to the court will be decided.

HMK 6100, which entered into force on 01.10.2011, has made the courts of first instance the main court in cases related to assets, with the exceptions specified in the law, without distinction of quantity, on the grounds that determining duties according to the value of the case creates many problems in practice, this distinction is impractical and does not fully respond to the needs. Accordingly, 2/1 of HMK in cases related to assets to be filed after 01.10.2011. regardless of the value of the case under the article, the duty court is the court of First Instance.

6100 HMK entered into force 01.10.2011 after 01.07.2012 entered into force 6102 TTK 5. by amending the law No. 6335 in its article, the relationship between the Commercial Court of First Instance and the court of First Instance and other courts of law was removed from being the relationship of the Department of Labor and turned into a relationship of Duty. Since the task is related to public order, it must be observed by the court at every stage of the case. However, the provisional 10 added to the law No. 6102 by law No. 6335. in the article, it is stated that the regulation of duties shall not affect the cases filed before the entry into force of this law.

Against these legal regulations, in cases filed by card issuing organizations(banks) against cardholders, the provisions of Humk No. 1086 on duties and powers are referred to in accordance with Article 44/2 of Law No. 5464, HMK 447/2. according to Article 1-8, this attribution shall be deemed to have been made to the relevant provisions of the HMK. in Articles 1-4 of HMK. although the duties of the general courts are regulated in the articles and no regulation on the duties of the commercial courts is included, the duties of the commercial courts (No. 6762 of TTC 5.) 5 of the TTC No. 6102. 44/2 of Bkkkk No. 5464. according to the fact that no reference is made to the provisions of the TTC on duty in the article, magistrate or first instance law according to the value of the case in terms of cases before 01.10.2011, and in cases after this date, it is necessary to accept that the courts of first instance are responsible, regardless of the value of the case.

By the way, it is necessary to mention the exceptions to this rule. 2/1 of HMK 6100. “if there is no contrary regulation in the law,” he said. On the contrary, regulation is 142/1 of the Banking Act No. 5411 and 43 of the Bkkkk No. 5464. the item is located.

Indeed 5464 No. 43 of Bkkkk. Article; ” 8 of this law. the provisions of the second paragraph of the article, Article 9, 12, 24, 25, 26 and 44 do not apply to corporate credit cards issued to merchants.” it was decided that. As can be seen, the legislator has adopted a different regulation in terms of duty in disputes over credit cards given to merchants and credit cards given to consumers, in accordance with the definition of commercial litigation in Article 4/1-6 of TTC 6762 (4/1-f of TTC 6102) in terms of credit cards given to merchants 5. in accordance with the article, it has ruled that commercial courts of First Instance will be in charge.

It should be noted that the legislator, No. 5464 Bkkkk 44/2. if the cases covered by Article 43 of the same law were intended to be heard in Commercial Courts of First Instance. in its article, it would not make this exception provision for corporate credit cards issued to merchants.

A second exception is 142/1 of the Banking Code No. 5411. he was brought in by the provision of the article. Accordingly, ” civil cases to be filed by the bankruptcy and liquidation administrations of the Fund, fund banks and banks whose permission to operate has been removed are handled by the Commercial Court of First Instance. If there is more than one Commercial Court of First Instance in that place, these cases are heard in the Commercial Court of First Instance (1) and (2).” According to the provision of the specified law, the case arising from the credit card dispute is 142/1 of the Banking Law No. 5411. if it is opened by the institution, organization, or banks provided for in the article, the court in charge is the Commercial Court of First Instance. If there is more than one Commercial Court of First Instance in this place, Commercial Courts of First Instance No. 1 and 2 are in charge. Since the duty in the said provision of the law is related to public order and is of a ordering nature, it must be observed by the court.

As a result, the court responsible for cases filed by banks against credit card holders in the period up to 01.10.2011 and excluding the above exceptions, magistrate or first instance law as general courts according to the value of the case, and in cases after this date 2/1 of HMK 6100. it is a court of first instance, regardless of the value of the case under its article. As a matter of fact, this issue is clearly stated in the decision of the General Assembly of the Supreme Court of Law, whose date and number are written above.

Of course, 28835, dated 28.11.2013 and published in the official gazette No. 6502 law on consumer protection enacted after 6 months from the date of publication that occurs after the entry into force of the bank who is responsible for credit card disputes, the court of the said law 3/1-K-J, 4/3, 73/1, 83/2 and 1 temporary. it must be determined within the framework of the provisions contained in its articles.

Therefore, the court entered into the basis of the work without regard to the provisions in question regarding the duty and required the establishment of the provision in writing to be violated.

Conclusion: a unanimous decision was made on 29.09.2014, to overturn the provision for the reasons described above, to overturn the defendant’s appeals according to the reason for overturning, to return the advance fee on request.