RESULTS OF NEGATIVE DETERMINATION
Conclusion of the Negative Decision Case in Favor of the Creditor
If the case is concluded in favor of the creditor, that is, it is rejected, the existence and validity of the legal relationship on which the claim subject to the proceeding is based will be determined by the final provision. If the lawsuit is filed before proceeding , the creditor gains the opportunity to apply for enforcement with a verdict .
If the case is rejected , the interim injunction taken by the debtor against the security to be shown, not less than fifteen percent of the receivable, shall be lifted. According to the Supreme Court, there is no need for the verdict to be finalized for this. Due to the negative declaratory action, since the creditor reaches his receivables late, a compensation amounting to 20% of the amount subject to the lawsuit is awarded against the debtor. In order for such compensation to be awarded, the debtor must have stopped the enforcement proceedings or prevented the payment of the money in the enforcement office to the creditor by taking a precautionary measure with a negative declaratory action. If such a precautionary injunction is not taken, 20% compensation shall not be awarded against the debtor, since the creditor will not suffer any damage.
Conclusion of the Negative Decision Case in Favor of the Borrower
If the plaintiff wins the negative declaratory action brought by the debtor during or after the execution proceeding , in other words , if the court finds that the plaintiff does not owe the defendant , the execution proceeding and, if made, the foreclosure process becomes unlawful . With the acceptance of the case , a final judgment is made in favor of the debtor . Because this case is resolved according to the general provisions. For this reason, the parties cannot file a new lawsuit based on the same issue. Following the judgment in favor of the debtor, the proceedings are immediately stopped. If it is decided that the plaintiff has no debts , the execution is fully reinstated , if it is decided that he is partially indebted , it is partially reinstated . In the event that the finalized writ is submitted to the enforcement office, the executive director performs the reinstatement procedures automatically. In case the case is concluded in favor of the debtor , the interim injunctions are canceled . The money in the executive cashier is given to the debtor. There is no need for the order to be finalized for this. However , the debtor may receive the security deposited due to the interim injunction , if the judgment becomes final . Another consequence of the lawsuit being concluded in favor of the debtor is that the creditor may face compensation. If it is understood that the follow-up which compels the debtor to file a negative declaratory action is unfair and malicious, it is decided to collect the damage suffered by the debtor due to the lawsuit from the creditor, upon his request. The damage to be appreciated cannot be less than twenty percent of the receivable which is the subject of the proceeding which is understood to be unfair. As it can be understood from the article , no such compensation can be imposed in favor of the debtor in cases of negative clearance brought before the execution proceeding .
Supreme Court 7. HD. ,TO. 2012/4217K. , 2013/174 , T. 17.1.2013 ;
67/2 of the “Execution and Bankruptcy Law”. The article stipulates that compensation will be awarded against the creditor if the execution proceeding is unfair and malicious. Pursuant to the aforementioned provision of the law, in order for compensation to be awarded in favor of the plaintiff, the enforcement proceedings made by the defendant/creditor must be unjust, and the proceedings must be carried out in bad faith. In the present case, it is understood that the defendant’s malicious intent could not be proven. As such, the defendant’s bad intentions cannot be mentioned and no bad faith compensation can be ordered against him. The fact that this aspect mentioned by the court was ignored and that compensation for bad faith was awarded against the defendant necessitated reversal as it was against the procedure and the law.
