14 Oct CASES OF DETECTION ACTIONS BY THE OPENING TIME OF THE ACTION
A Case of Detection of a Vice According to the Opening Times
A. A Vile Detection Case Filed Before the Enforcement Proceedings:
In this case, while an enforcement proceeding has not yet been initiated against the debtor; in fact, a vile detection case can be filed against the person who threatens him to pay a non-existent debt. If the debtor’s legal status is in danger in the negative detection case filed before the follow-up or if the legal relationship between the parties contains uncertainty and the decisiveness will be eliminated by the decision to be made as a result of the lawsuit to be filed, it should be accepted that there is a legal benefit.
As a rule, a case of foul play does not affect the enforcement proceedings and does not stop the proceedings. However, the court may issue an injunction on the termination of enforcement proceedings in exchange for a guarantee that will be shown not less than fifteen percent of what you will receive upon request (IIK. m.72/2). Compensation cannot be awarded in a negative detection case filed before enforcement proceedings. Because in order for compensation to be decided, there must be an unfair and malicious prosecution.
The court, which is looking at the case of determination of interest, should reject the request for an injunction if it finds that the case was filed in order to delay the collection of the receivable.
If the creditor requests that he will receive the notice by making a discovery, it cannot be accepted that this notice reveals the seriousness of the request. In this case, the nature of the document held by the creditor must be determined in order to determine whether the plaintiff debtor has a legal interest in filing a vices determination case. For example, if the creditor has requested receivables without relying on any document in the notice, he/she will file a negative detection case upon this notice and the debtor has no legal benefit. Because the debtor has the opportunity to stop the proceedings by objecting to the unauthorized proceedings initiated by the creditor without relying on any document.
A promissory note or OTHER in the creditor’s hands.nun 68.if there is one of the documents listed in the article, it should be accepted that the borrower has a legal interest in filing a negative determination case.
If the creditor has a serious document against the debtor before the enforcement proceedings, a case for detecting a vice may be filed. If there is a document in the doctrine that is able to remove the objection that the borrower will make after the follow-up is opened, it is accepted that the borrower has a legal interest in filing a benefit determination case. The debtor may file a vices detection lawsuit related to the disabilities 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 request is being challenged is within the authority of official departments or competent authorities and is subject to a receipt or document duly issued within a year containing a signature confession or a notarized debt confession…”
“Supreme Court 19. Department of Law, e. 2014/7626, K. 2015/4782, T. 6.4.2015”
“…With the notary public notice dated 4.2.2011 sent to the plaintiff by the defendant bank, the letters of guarantee contained in the plaintiff and 20 check sheets were requested to be returned to the bank, upon this warning, the plaintiff returned the letters of guarantee and check sheets subject to the lawsuit to the defendant bank before the lawsuit was filed. After this refund, there was no other notice of the same issue taken by the defendant bank to the plaintiff, nor was there any enforcement proceedings involving these issues. As a result, there is no legal benefit for the plaintiff to file a vile detection case due to the letters of guarantee and check leaves returned before the case. Since the legal benefit is one of the conditions of the case, it should be observed if you re…’
B) A Vile Detection Case Filed After Enforcement Proceedings:
The debtor may also file a vice detection lawsuit to determine that he is not the debtor after the follow-up. In this case, the debtor must also have a legal interest. Even if the debtor provides for the cessation of the proceedings as a result of the appeal, due to the fact that he is under threat of being the addressee of the appeal cancellation or removal of the appeal in the future; It is necessary to recognize that he has a legal interest in filing a negative detection case. It cannot be decided to stop the follow-up by way of an injunction in a foul detection case filed after enforcement proceedings. However, a guarantee of not less than 15% of the receivable can be deposited and, by an injunction, it can be ensured that the money entering the bailiff’s office at the end of the follow-up is not paid to the creditor. If the court issues an injunction, the foreclosure is prevented, and in exchange for collateral, the money is not paid to the creditor until the end of the case. In addition, as a rule, it is not possible to prevent foreclosure or sale by precautionary measure. As a matter of fact, the decisions of the Supreme Court are also in this direction.
“General Assembly of the Supreme Court of Law , E. 2011/19-622, K. 2012/9, T. 18.1.2012”
‘…The borrower, about a possible enforcement proceedings yet to be done before the start of follow-up, thinking about a debt against anyone who threatened to himself, “such a determination as to whether there is a liability” when he accepted, even for negative clearance, a debtor who walks about in this case is found enforcement proceedings trench doubt that one of the benefits is not legal, as there is no legal impediment to bring such a claim. I am in the hands of the creditor.I.K.nun 68. the absence of the documents listed in the article, the enforcement proceedings initiated against the debtor, the fact that the debtor has stopped the proceedings by appealing is also not enough to admit that the debtor has no legal interest in filing a bad detection case, and even in this case the debtor is under threat of debt and therefore has a legal interest in filing a bad detection case …’
“ARTICLE 72 / III In the case of a negative determination filed after the enforcement proceedings, it cannot be decided to stop the proceedings by way of an injunction. However, the debtor may request the court not to provide the money in the execution register to the creditor by way of an injunction in exchange for the guarantee that he will show to cover the damages arising from the delay and not less than fifteen percent of the receivable. If the foul detection case is opened based on an allegation of forgery, HMK m. in particular, the first paragraph of article 209 should be taken into account. Transactions carried out on the basis of the alleged year of forgery are also stopped. Therefore, the enforcement proceedings initiated on the basis of this year will also stop. This judgment is binding. “
ARTICLE 209
“(1) When the article or signature on a common deed is denied, that deed cannot be based on any transaction until a decision is made on it.
(2) If the article or signature in the official promissory notes is denied, the falsification of the article or signature in the promissory note is fixed only by a court decision, this promissory note may not be based on any transaction.
(3) The injunction issued on the basis of the year is not affected by the alleged forgery of that promissory note and, if necessary, the holder of the promissory note may request new measures to protect their rights.”
CRIMINAL PROCEDURE FOR THE DETERMINATION OF A VICE
The negative determination case regulated in the Enforcement and Bankruptcy Law is subject to general provisions both in terms of substantive law and procedural law. Due to the fact that the case is subject to the general provisions, the provisions of the Code of Civil Procedure will be enforced8.
In cases of negative identification filed after enforcement proceedings, the competent court is the court of the defendant’s place of residence or the court of the place where enforcement proceedings are conducted.
The debtor may also raise objections and deficits that he did not report in the enforcement court when appealing the payment order, as well as in the case of foul detection.
THE DURATION OF THE PERIOD IN THE CASE OF DETECTION OF VICE
A person who has not objected to the follow-up or is obliged to pay a money that he does not owe in full due to the fact that his objection has been removed may apply to the court within a year from the date of payment and request that the money be withdrawn.
The fee to be paid in the case is calculated based on the cost of the case, that is, the relative fee. In the same way, the power of attorney fee will be calculated at the end of the case at the cost of the case according to the legal rates.
As a result of the case in question, it will be determined whether the debt relationship has a legal basis. The necessary actions will be taken for collection. In order to avoid loss of rights, both parties must be represented by an expert lawyer in their field.
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