CASE OF CANCELLATION OF THE APPEAL – CREDIT CARD DEBT

05 Mar CASE OF CANCELLATION OF THE APPEAL – CREDIT CARD DEBT

T.C. THE DECISION OF THE SUPREME COURT
19.law office

Base: 2014/10262
Decision: 2014/14317
Date of Decision: 29.09.2014

CASE OF CANCELLATION OF THE APPEAL – CREDIT CARD DEBT – THE NEED TO TAKE INTO ACCOUNT THAT THE COURT OF FIRST INSTANCE IS IN CHARGE WHEN CONSIDERING THE DATE OF THE CASE

ABSTRACT: When considering the case date in a concrete case, it should be taken into account 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 P. K. m. 43, 44) (6100 pp. K. m. 1, 2, 3, 4, 447) (1086 P. 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 file was examined, the file was discussed and considered as necessary after the defendant appealed within the period of the decision made for the partial acceptance or partial rejection of the case for the reasons written in the dec:

Decision: The deputy plaintiff requested and sued to decertify the appeal by stating that a credit card membership agreement had been concluded between the parties and that the enforcement proceedings initiated over TL 6,142.41 had been stopped with the defendant’s unfair objection due to the defendant’s failure to pay the credit card debt.

The defendant has asked for the case to be dismissed.

According to the evidence collected by the court, it was decided to partially accept the case, partially cancel the appeal, continue the proceedings 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 that was received and used by the plaintiff dec.

It is controversial whether the court in charge of lawsuits to be filed by card issuing organizations (banks) against card holders is the commercial court of first instance or the civil court of first instance. In particular, Article 5 of the Turkish Commercial Code No. 6102. Item No. 6335 01.07.2012 in accordance with an amendment to the law courts and law from the date of the first commercial court of first instance, the relationship between the courts, the division of Labor is the relationship of task from being converted into the debate on this issue after the relationship has intensified.

At this point, it has been seen that it is useful to determine the court in charge of the lawsuits filed against card holders by card issuing organizations (banks) and to make a brief statement about the legal regulations related to the issue.

The first legal regulation on credit cards in Turkey was made by adding Article 10 / A titled “Credit Cards” to the Law No. 4822 published in the Official Gazette dated 14.03.2013 and the Law No. 4077 on Consumer Protection No. 10/A. Thus, credit cards were included in the scope of TKHK No. 4077. 23 of the Law No. 4077 entitled “Consumer Courts”. in its article, it is stipulated that disputes arising from this law, regardless of the adjective of the plaintiff, will be heard in consumer courts.

44 of the Bank Cards and Credit Cards Law No. 5464, which was published in the Official Gazette dated 01.03.2006 and entered into force. in its article, in contrast to the regulation in Law No. 4077, a duty regulation has been applied that varies according to the adjective of the plaintiff.

44/1 of the BKKKK No. 5464. according to article 22 of the Law No. 4077 on Consumer Protection, if the cardholder is a consumer in disputes related to the application of this law: ”22. and 23. the provisions of the articles shall apply.” With the specified legal regulation, consumer courts have been charged in cases that will be filed against organizations (banks) that issue cards by cardholders who have the title of consumer due to a credit card dispute by the specified legal regulation.

Since there is a consensus on this issue, there has also been no discussion.

Discussion, 44/2 of the BKKKK No. 5464. it has appeared in relation to the regulation of duties in the article. Two different opinions constitute the subject of the discussions. According to one view, the contracts of the TCC numbered 6102 bank credit card 4/1-organized in item f of the banking transactions, due to credit card disputes commercial litigation because it is counted from the absolute card issuing institutions(banks) the card holder is in charge of the Commercial Court Court case against the criminal. According to another opinion; 44/2 of the BKKKK No. 5464. article 1086 refers to the provisions of the CMB on duties and authority and, in accordance with Article 447/2 of the HMK, “References to the CMB No. 1086 will be deemed 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 lawsuit and the amount relating to the court unless there is a provision to the contrary in the case of the court” where are connected to the provision of business and not in the procedural law of the case, laid out in compliance with the Turkish commercial code when issuing the consumer the capacity to card holders by card filed against the institutions in charge of the court is the court of First Instance.

As a matter of fact, the General Assembly of the Supreme Court of Law in its decision dated 07.02.2007 and numbered 2007/19-50 E, 2007/50 K, made it clear that the commercial courts, not the general courts, are in charge of the court of first instance according to the case value in a concrete case in the cases to be filed by banks against card holders, and adopted the second opinion.

In determining the task, it is useful to evaluate the cases filed separately in terms of the HMK period No. 1086, which remained in force until 01.10.2011, and the HMK period No. 6100, which entered into force after that date.

To repeat, 44/2 of the BKKKK No. 5464. in its article, reference is made to the “provisions of the Code No. 1086 on duty and authority”. the provisions of the Law No. 1086 on the post, which was in force until 01.10.2011, are in accordance with articles 1-8 of the said law. it is regulated in its articles. HUMK’s 8/1. according to the article, the court in charge of the case with regard to the case of assets are determined according to the value prescribed by law and as each year has increased compared to the revaluation rate to a value not exceeding in the case of the magistrates ‘ courts, were seen in the court case above a certain value. In addition, Article 5 of the TCC, which was 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 business department relationship, the judge could not make a decision to send a re’sen on the grounds that it was decommissioned, unless the business department objected during the period. The fact that the judge continued the case despite the objection of the business department and made a decision on the dispute on the merits was not considered a reason for overturning it alone. (article 5 of the Turkish Commercial Code No. 6762).

As such, the provisional number of HMK No. 6100 is 1. in accordance with the provision in the article “The provisions of this law on the judicial path and duty do not apply to cases filed on the date before the entry into force of the law”, in disputes before 01.10.2011, 44/2 of the BKKKK No. 5464. article 1-8 of the HUMKAH No. 1086. in accordance with the articles, it will be determined that the magistrates or courts of first instance are in charge according to the case value at the time of the case, but in accordance with Article 5 of the Turkish Commercial Code No. 6762. the provision on the objection to the division of labor in the article will also be taken into account when determining the task. Starting from here, 01.10.2011 filed against the bank by the card holder before the date of the General Court (the value of the case, according to the civil courts civil or) being in charge of the criminal case to the court at the time of the trade was opened and the division of labor with regard to if no objection has been made, the case will be taken in the court of the criminal trade, but in time, the division of Labor was filed the objection of the file, if the general duty (civil or criminal law) to be sent to the court will be decided.

01.10.2011 which entered into force on the date of 6100) HMK, the case has created many problems in the application to determine the value of the task according to this answer is not very practical and needs regardless of the amount specified in the laws on the grounds that he did not exactly exceptions, as in the case of assets with the court of first instance the court has become the principal. Accordingly, in cases related to the assets to be filed after 01.10.2011, HMK’s 2/1. regardless of the value of the case in accordance with the article, the court in charge is the court of first instance.

Article 5 of the Turkish Commercial Code No. 6102, which entered into force on 01.07.2012 after 01.10.2011, when the HMK No. 6100 entered into force. Item No. 6335 law amendment by the court with the relationship between the courts and other law-the Commercial Court division of Labor has been transformed from being the relationship of task relationship. Since the duty is related to public order, it must be observed personally by the court at all stages of the case. However, the provisional Article 10 added to the Law No. 6102 by Law No. 6335. it is stipulated in the article that the regulation of duties will not affect the cases filed before the entry into force of this law.

In the face of these legal regulations, in cases filed by card issuing organizations (banks) against card holders, in accordance with Article 44/2 of Law No. 5464, the provisions of HUMK No. 1086 regarding duty and authority are referred to, HMK 447/2. in accordance with article 1-8 of both HUMK and the task, this reference will be deemed to have been made to the relevant provisions of HMK. in articles 1-4 of both the HMK and the. although the duties of the general courts are regulated in the articles and no regulation on the duty of the commercial courts is included in the articles, the duty of the commercial courts (Article 5 of the Turkish Commercial Code No. 6762.) Article 5 of the Turkish Commercial Code No. 6102. although it is regulated in Article 44/2 of the BRCC No. 5464. according to the article, there is no reference to the provisions of the TCC regarding the task, in respect of cases before 01.10.2011, it is necessary to accept that the magistrate or first instance law is in charge according to the case value, and in cases after this date, the first instance law courts are in charge regardless of the case value.