According to the Opening Times, the Case Was Determined
A. Menfi Detection Case Filed Before Enforcement Proceedings:
In this case, while an enforcement pursuit has not yet been initiated against the debtor, an interest detection case may be filed against the person who threatens him with paying a debt that does not actually exist. If the debtor’s legal situation is in danger in a decency determination case filed before the follow-up, or if the legal relationship between the parties is uncertain and the uncertainty will disappear with the decision to be made as a result of the case to be opened, it should be accepted that the legal benefit is available.
As a rule, the case of menfi detection does not affect the enforcement proceedings, it does not stop the follow-up. However, the court may issue an injunction to stop enforcement proceedings in exchange for a guarantee that will be shown not less than fifteen percent of what you will receive upon request (II). m.72/2). Compensation cannot be ruled in a case of exclusion filed before enforcement proceedings. Because in order to be awarded compensation, there must be an unfair and malicious prosecution.
The court dealing with the case of misappropriation should reject the request for an injunction if it considers that the case has been opened in order to delay the collection of the receivable.
It is unacceptable that this notice reveals the seriousness of the request if the creditor requests that he will only receive it if he requests that he will receive it by sending a notice. In this case, it is necessary to determine the nature of the document in the hands of the creditor in order to determine whether the plaintiff has a legal interest in filing a claim for delinquency of the debtor. For example, if the creditor has made a claim for the receivable based on no documents in the notice, there is no legal benefit to the debtor in filing a claim for exclusion on this notice. Because the debtor has the opportunity to stop the follow-up by objecting to the illogical follow-up initiated by the creditor without relying on any documents.
The creditor has a promissory note or a FIRST.nun 68.if there is one of the documents listed in the article, it should be recognized that the debtor has a legal interest in filing a claim for delinquency determination.
If there is a serious document against the debtor in the hands of the creditor before the execution follow-up, a case of misappropriation can be filed. If there is a document in the doctrine that can 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 claim for delinquency determination. The debtor may file a claim for delinquency related to disability in the debt relationship.
“ARTICLE 68 – (amended: 18/2/1965-538/38 art.) (Amended first paragraph: 17/7/2003-4949/16 md.)”
“Except for a receipt or document issued by the creditor, whose signature includes a declaration or notarized debt declaration, or duly issued within the authority of official departments or authorized authorities, whose request has been challenged …”
“Supreme Court 19. Department of Law, E. 2014/7626, K. 2015/4782, T. 6.4.2015”
‘…With the notary’s notice dated 4.2.2011 sent by the defendant bank to the plaintiff, the letters of guarantee and 20 check sheets found in the plaintiff were requested to be returned to the bank, upon this notice, 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 return, there was no other notice regarding the same issue that was withdrawn by the defendant bank to the plaintiff, nor was there any enforcement proceedings involving these issues. In this case, there is no legal benefit for the plaintiff to file a case of misappropriation due to letters of guarantee and check sheets returned before the case. Since the legal benefit is one of the terms of the case, re’sen should be observed…’
B) The Case of Determination of Interest Filed After Enforcement Proceedings:
The debtor may also file an interest determination case to determine that he is not a debtor after the follow-up. In this case, the debtor must also have a legal interest . Even if the debtor ensures that the follow-up stops as a result of the appeal, it is necessary to recognize that he has a legal interest in filing a case of unlawful detection, because in the future he is threatened with the cancellation of the appeal or the removal of the appeal to the interlocutor of the case. In the case of detection of interest filed after enforcement proceedings, it cannot be decided to stop the proceedings by way of an injunction. However, by depositing a deposit of not less than 15% of the receivable and issuing an injunction, it can be ensured that the money entered into the execution teller at the end of the follow-up is not paid to the creditor. If the court decides on 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.
“The 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. in the absence of the documents listed in the article, the enforcement proceedings initiated by the debtor are stopped by the debtor with an appeal, and it is not enough to accept that the debtor has no legal interest in filing a benefit determination lawsuit, even in this case the debtor is threatened by the debt, and therefore there is a legal interest in filing a benefit determination lawsuit …’
“ARTICLE 72 / III In the case of determination of interest filed after enforcement proceedings, it cannot be decided to stop the proceedings by way of an injunction. However, the debtor may ask the court not to give the money on the execution teller to the creditor by way of an injunction in exchange for the guarantee that he will show to cover the losses arising from the delay and not less than fifteen percent of the receivable. If the menfi detection case is filed on the basis of an allegation of forgery, HMK M. particular attention should be paid to the first paragraph of article 209. Transactions based on the year in which the forgery is claimed also stop. Therefore, the enforcement follow-up initiated on the basis of this year also stops. This provision is binding. “
ARTICLE 209
“(1) When an article or signature on a ordinary promissory note is denied, that promissory note cannot be based on any transaction until a decision is made about it.
(2) If the inscription or signature on the official promissory notes is denied, the forgery of the inscription or signature on the promissory note is fixed only by a court decision, this promissory note cannot be based on any transaction.
(3) The injunction issued on the basis of the year is not affected by the forgery claim on that deed and, if necessary, the owner of the deed may request new measures to protect his rights.”
THE PROCEDURE FOR ADJUDICATING A CASE OF MISAPPROPRIATION
The case of determination of interest organized in Enforcement and Bankruptcy Law is subject to general provisions both in terms of material 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 applied 8.
The competent court in cases of detection of interests filed after enforcement proceedings is the court of the defendant’s settlement or the court of the place where enforcement proceedings are conducted.
The debtor will also be able to bring forward objections and defections that he did not report in the enforcement court when appealing the payment order and in the case of finding out his interest.
THE DURATION OF THE DETENTION CASE
A person who has not objected to the follow-up or is obliged to pay a money that he is not owed in full due to the fact that his objection has been removed may apply to the court within one year from the date of payment and ask for the money to be withdrawn.
The fee to be paid in the case is calculated at the cost of the case, that is, it is the relative fee. In the same way, the proxy 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 this case, it will be determined whether there is a legal basis for the debt relationship. The necessary actions will be taken to collect it. In order not to suffer a loss of rights, both parties must be represented by an expert lawyer in their field.
