Case for cancellation of objection

The case for cancellation of the objection regulated by Article 67 of the EBL; It is a type of lawsuit that the follow-up creditor can file in order to nullify the objection of the follow-up debtor and continue the enforcement proceedings. As a matter of fact, Article 67 states, "The creditor whose follow-up request is objected to may apply to the court within one year from the date of notification of the objection and file a lawsuit for the cancellation of the objection by proving the existence of the receivable within the scope of general provisions." It is arranged as follows. If the creditor wins the case, the debtor's objection becomes null and void and is cancelled. In this respect, this case is called the cancellation of the objection.

There are various opinions in the doctrine regarding the legal nature of the objection cancellation case. According to one view, the case for annulment of objection is a normal receivables case, while another view is that the case is a determination case. According to a third opinion, this case is neither a collection nor a detection case. The Supreme Court of Appeals described the objection annulment case as a determination case. In the decision dated 14.03.1972 of the 11th Civil Chamber of the Supreme Court of Appeals, "As can be seen from the above explanation, there is no demand for collection, that is, a lawsuit for performance, in terms of the plaintiff's main receivable. Since the plaintiff wants to cancel the defendant's objection and decide on the continuation of the execution, this request should be seen as a Determination Case and a decision should not be made that would lead to collection by being satisfied with the determination of the receivable." With the expressions in the form, it can be seen that the case for annulment of the objection is qualified as a declaratory case.

Basically, the creditor has two types of applications to remove the debtor's objection: cancellation of objection and removal of objection. The creditor, who has initiated enforcement proceedings against the debtor but whose proceedings have been stopped by an objection, has no choice but to file a lawsuit for the annulment of the objection, if the receivable is not based on the documents listed in the law (EBL art. 68/68a). In terms of receivables based on documents listed in the law, the objection may be removed or the objection may be cancelled. In these cases, the creditor has the right to choose. If the creditor first applied for the removal of the objection, he may give up this method and choose the cancellation of the objection. However, the creditor who first applies for the cancellation of the objection will not be able to remove the objection later.

A lawsuit for cancellation of objection can only be filed if there is an objection to the debt. In cases where the debtor only objects to authority, the objection cannot be cancelled. Only in cases where there is a jurisdictional objection, the creditor may request the enforcement court to remove the jurisdictional objection.

CONDITIONS FOR OPENING A CASE FOR CANCELLATION OF OBJECTION

The ability to file a lawsuit for cancellation of objection depends on the existence of some conditions. It is possible to list these conditions as follows.

1- Presence of a Valid Enforcement Proceedings

In order to file a lawsuit for cancellation of the objection, the existence of a valid enforcement proceeding is required. A valid enforcement proceeding means an enforcement proceeding initiated through general seizure. There should be no previously finalized judgment regarding the enforcement proceedings initiated. In addition, enforcement proceedings can only be initiated for money receivables.

If the debtor objects to authority, the creditor may request that the proceedings be sent to the authorized enforcement office. The authorized enforcement office prepares a new payment order and notifies it to the debtor. In this case, a lawsuit for cancellation of objection cannot be filed due to the debtor's objection to the debt in the unauthorized enforcement office.

As a matter of fact, the 22nd Civil Chamber of the Supreme Court of Appeals stated this situation in a decision dated 2020: "Since no follow-up process other than the acceptance of the debtor in the unauthorized enforcement office can be considered valid by the authorized enforcement office, it is mandatory to notify the debtor in the authorized enforcement office with a new payment order enabling the start of the prosecution. After the creditor party ensures the transfer of the enforcement proceedings file to the authorized enforcement Office, there is no existing and valid enforcement proceeding without notifying the debtor of a new payment order." "It is not possible to hear this case because the conditions for annulment of the objection are not met. For these reasons, the decision to accept the case should be rejected and it is erroneous and requires reversal." He expressed it as follows.

2- Debtor has a valid objection

The debtor may object to the payment order within 7 days from the notification of the payment order. If this period is exceeded, the objection does not stop the proceedings. The debtor may object only to the debt or only to the authority. In cases where only the authority is objected to, a lawsuit for annulment of the objection cannot be filed. However, if both authority and debt are objected to, the authority objection will be examined first in the lawsuit to be filed.

3- The case must be filed within due time

There is a limitation period in the case for cancellation of the objection. An explanation regarding the duration will be made under a separate heading below.

4- Legal Benefit in the Cancellation of Objection Case

In order to file a lawsuit for cancellation of objection, the creditor must have a legal interest in filing the lawsuit. Legal benefit is a condition for litigation. In cases where the prosecution does not stop with an objection, the debtor does not have the right to file a lawsuit. If the debt is paid before the lawsuit, a lawsuit cannot be filed. According to the decision of the 11th Civil Chamber of the Supreme Court of Appeals numbered 2020/2853 E.;

In cases where the receivables subject to the action for cancellation of objection are paid after the follow-up but during the period when the action for cancellation of objection has not yet been filed, it should be accepted that the plaintiff has no legal interest in filing a case for cancellation of objection in terms of the paid portion. In cases where the receivable, which is the subject of the objection annulment case, is paid after the objection annulment case is filed, it should be considered that the case remains irrelevant in terms of the paid portion, and it should be ruled that there is no need to decide on the merits of the case that remains irrelevant in terms of the paid part of the receivable. However, in cases where the creditor requests enforcement denial compensation, the trial should continue.

A lawsuit for cancellation of objection can also be filed after the debtor files a negative declaratory action. According to the Supreme Court, in such cases, the creditor cannot continue enforcement proceedings. Therefore, there is a legal benefit in filing a lawsuit for annulment of the objection. However, it was ruled that the debtor cannot file a negative declaratory action after the objection annulment lawsuit. In such cases, the debtor has no legal benefit in filing a negative declaratory suit.

CANCELLATION OF OBJECTION CASE PERIOD

As clearly stated in Article 67 of the EBL, the period for filing a lawsuit for cancellation of objection is 1 year. The starting date of the 1-year period is the date on which the debtor's objection is duly notified to the creditor. The period for filing a lawsuit will not start unless the objection is duly notified to the debtor. The fact that the objection is learned by the creditor in any way other than notification will not initiate the period for filing a lawsuit. As a matter of fact, in a decision made by the General Assembly of the Supreme Court of Appeals in 2020, this situation was stated as follows: "Considering the regulation in Article 67/1 of the EBL, it is clear that the fact that the creditor has made enforcement proceedings in the enforcement file does not mean notification of the objection. In this case, a decision should be made based on the merits of the matter and its outcome, taking into account that the case filed by the court is in due time." He stated it clearly with his statements.

The period for filing a lawsuit specified in the law is restrictive. Therefore, it is taken into account by the judge ex officio.

In some cases, a special period of 1 week is envisaged in addition to the 1-year period. Articles 264/2-4 and 65/5 of the EBL. If the conditions in the articles are met, the creditor has the right to an additional period of 1 week.

FAILURE TO FILE A CASE FOR CANCELLATION OF THE OBJECTION WITHIN TIME

As we stated above, the case for cancellation of the objection is filed within 1 year from the notification of the objection. This period specified by the law is of a restrictive nature, and after the expiration of the period, the creditor's pursuit without judgment will be terminated and his right to file a lawsuit will cease. The creditor who has passed the deadline cannot file a lawsuit for cancellation of the objection.

The passage of 1 year does not mean that the creditor's receivables have ended. The creditor's right to file a lawsuit for cancellation of the objection is reduced, but the right to file a lawsuit continues according to general provisions. Therefore, the creditor who has expired has the right to file a lawsuit within the limitation period according to general provisions. In cases of receivables filed after the expiration of the period, enforcement denial compensation will not be awarded.

COURT IN CHARGE OF CANCELLATION OF OBJECTION CASE

The court in charge of the cancellation of the objection case is determined in accordance with the general provisions of the Code of Civil Procedure. Civil courts of first instance have jurisdiction in cases of cancellation of objection, regardless of the value of the case. The case is filed in the court where the dispute subject to enforcement proceedings falls within the jurisdiction of the court. For example, in employee-employer disputes, the competent court will be the labor court. The competent court for commercial cases should be designated as the commercial court of first instance. The court responsible for matters falling within the scope of the Law on Consumer Protection No. 4077 is the consumer court. Regarding the issue, the Supreme Court stated that "the dispute between the plaintiff and the defendant arises from the education service and the case falls within the scope of the Law on Consumer Protection No. 4077. In this case, the competent court is the consumer court. The regulations regarding the duty are related to public order and are observed ex officio at every stage of the trial, even if the parties do not put forward." There is a decision as follows.

CANCELLATION OF OBJECTION CASE AUTHORIZED COURT

The competent court is HMK 5 et seq. determined according to its provisions. The court of general jurisdiction is the court of the debtor's place of residence.

The fact that the debtor has not objected to the jurisdiction of the enforcement office does not mean that he cannot object to jurisdiction in the case. Failure to object to the authority of the enforcement office does not automatically make the court competent. Therefore, the defendant may object to jurisdiction in the case. The authority objection is the first objection and this objection must be put forward in the answer petition. As we stated above, if only an authorization objection has been made against the payment order, a lawsuit for cancellation of the objection cannot be filed.

CANCELLATION OF OBJECTION CASE FEE - BASIS VALUE OF THE FEE

The action for cancellation of the objection is subject to a relative fee in accordance with the general provisions. The five-per-thousandth advance fee paid by the creditor when opening enforcement proceedings is refunded to him or is deducted from the lawsuit fee.

In the case of cancellation of the objection, the value based on the fee is taken into account as the actual receivable amount. In other words, the fee is calculated based on the follow-up output. Interest, enforcement denial compensation and expenses are not taken into account.

As a matter of fact, in the decision numbered 2002/772 E. of the 3rd Civil Chamber of the Supreme Court of Appeals, it is stated that "The action for cancellation of the objection (the receivable which has been subject to legal proceedings and which the debtor has objected to) is a normal performance (receivable) case. The duty of the court is determined on the basis of the actual receivable amount in accordance with the provisions of Article 8 of the Code of Civil Procedure, and in determining the limit of duty, "interest, enforcement (denial) compensation (EBL. art. 67, 69, 72) and expenses are not taken into account."

The point to be considered here is that if interest is charged on the original receivable at the time of the pursuit, the interest must be charged for the continuation of the pursuit. Otherwise, the judge will not be able to decide in terms of interest. The decision of the 15th Civil Chamber of the Supreme Court of Appeals, numbered 2014/4068, stated below, will help to concretize the issue.

"In the enforcement proceedings request, a total receivable of 124,126.30 TL, consisting of the principal receivable of 82,600.00 TL and accrued interest of 41,526.30 TL, was requested to be collected with 25% default interest to be applied to the principal receivable from the date of pursuit, and the entire debt was objected by the defendant debtor. In the petition, the base value of the fee was shown as 82,600.00 TL and the fee was paid based on this amount. Since the amount for which the fee was paid corresponds to the main receivable in the follow-up request and since the fee was not replenished later, it must be accepted that the case at hand was filed limited to the main receivable in the follow-up request. Regarding the interest receivable in the follow-up request, there is no lawsuit filed procedurally by paying the fee or completing it later. According to Article 26 of the Code of Civil Procedure, since the judge is bound by the outcome of the parties' demand and cannot decide more than that, it is against the law for the court to make a ruling that the demand will be exceeded and the accrued interest will be received."

CANCELLATION OF OBJECTION CASE TRIAL PROCEDURE

In cases of cancellation of objection, the trial is carried out according to the general provisions, as stated above. The debtor is not bound by the reasons he stated when objecting to the payment order. In the case of cancellation of the objection, the response petition and the second response petition must be prepared to cover all objections. The reasons given by the debtor in objecting to the payment order must be stated in the response petitions. Otherwise, these reasons are not automatically taken into account. Again, as stated above, a jurisdictional objection may be made in the case.

In the case of cancellation of the objection, the creditor may prove the existence of his receivable with all kinds of evidence, provided that it is in accordance with the law.

RESULTS OF THE CANCELLATION OF THE OBJECTION CASE

The case for cancellation of objection results in two ways: acceptance of the case and rejection of the case.

Rejection of the Case for Cancellation of Objection

In case the case is rejected, the cancellation of the enforcement proceeding comes to the fore. However, in order to cancel the follow-up, the rejection decision must be final. Furthermore, bad faith compensation is awarded in favor of the debtor. In order for this compensation to be awarded, the debtor must have requested compensation for bad faith in the response petition. In order for bad faith compensation to be awarded, the creditor must have started the proceedings in bad faith. In order for the creditor to be considered to be in bad faith, he must have initiated enforcement proceedings even though he knew or should have known that it was unfair. The burden of proof that the creditor is in bad faith falls on the defendant debtor. Compensation for bad faith cannot be less than twenty percent of the receivable amount.

Acceptance of the Cancellation of Objection

If the case is accepted, the court decides to cancel the debtor's objection. Thus, the suspended enforcement proceedings continue. In addition, if the conditions that we will examine below are present, the debtor is sentenced to enforcement denial compensation.

EXECUTION DENIATION COMPENSATION

Article 67/2 of the EIC. According to the article, if it is decided that the objection is unfair in the case of annulment of the objection, the debtor, upon the request of the other party, is sentenced to rejection or an appropriate compensation, not less than "twenty percent" of the judged amount, depending on the situation of both parties, the tolerability of the case and the thing judged. The purpose of regulating enforcement denial compensation is to prevent the debtor from denying his debt in execution upon payment order. The rate of twenty percent represents the minimum compensation amount. The court may also award more compensation. Enforcement denial compensation is calculated based on the original receivable. The conditions for enforcement denial compensation are as follows.

There must be a valid enforcement proceeding.

The debtor must have made a valid objection.

There must be a case for annulment of objection filed within the prescribed period.

The creditor must have requested enforcement denial compensation.

It must be decided that the debtor's objection is unfair.

In the case of cancellation of the objection, the receivable must be liquid.

In order to award enforcement denial compensation, it is not required that the creditor be in bad faith. Just objecting is enough. As we mentioned above, even in cases where the objection annulment case is rendered irrelevant due to payment, the court must continue the trial and decide on compensation for enforcement denial.

The decision does not have to be final in order to claim enforcement denial compensation. The start of interest on enforcement denial compensation will be the decision date and interest may be charged on enforcement denial compensation as of this date.

AFTER CANCELLATION OF THE OBJECTION, EXECUTION PROCEEDING CONTINUES

If the case for annulment of the objection is accepted, the creditor may request that the proceedings be continued along with the annulment decision. The decision does not have to be final. However, the debtor may request that the execution be postponed, and if the conditions are met, a postponement of execution will be decided. It is not necessary to send a re-payment order for the creditor to continue the pursuit. However, in terms of new receivables to be added (execution denial compensation, interest, attorney's fee, etc.), a payment order must be sent to the debtor again through the same file.

As a matter of fact, according to the decision of the 12th Civil Chamber of the Supreme Court of Appeals No. 2017/9216 K.;

"According to the decision made as a result of the case for cancellation of the objection, there is no obstacle to continuing the follow-up on the original receivable and its interest, which was requested in the follow-up and the court decided to continue the follow-up, through the file in which the enforcement proceeding without a judgment was initiated. There is no need to send an enforcement order for this. However, since the compensation, fee, attorney's fee and trial expenses, which are ancillary to the decision to cancel the objection, are based on the judgment, it is necessary to issue an enforcement order and notify the debtor through the same file, and the enforcement order It is not possible to request compensation, fees, attorney's fees and litigation expenses, which are ancillary to the decision of cancellation of the objection, by calculating the balance debt upon the creditor's request, without sending the objection."

CANCELLATION OF OBJECTION CASE FINAL JUDGMENT

The action for cancellation of the objection enables the decision to be made on the merits of the receivable. Therefore, the decision given as a result of the case for annulment of the objection constitutes a final judgment for the parties (HMK. Art. 303). In this context, starting from the date when the decision to reject the case becomes final, the creditor is against the receivable in question, and the debtor is against the creditor as of the date of finalization of the decision to accept the case; As a rule, it is not possible to file a negative determination (negative determination) or revocation lawsuit. The receivable that is the subject of the cancellation of the objection cannot be subject to another lawsuit again.

CAN THE CASE FOR CANCELLATION OF THE OBJECTION BE FILED AS A PARTIAL ACTION?

Partial lawsuit refers to a lawsuit filed for only a certain part of the receivable. Although it is possible to file a full lawsuit for a larger amount of a receivable, a lawsuit filed for a portion of the receivable is called a partial lawsuit. In order to file a partial lawsuit, the subject of the request must be divisible, and it is not necessary to clearly state in the petition that the lawsuit filed is a partial lawsuit.

There is no legal obstacle to partially filing a lawsuit for cancellation of the objection. If the creditor wishes, he may subject a portion of the receivable in enforcement proceedings to the cancellation of the objection. As a matter of fact, in the decision numbered 2018/11686 of the 17th Civil Chamber of the Supreme Court of Appeals, "In the concrete case, the plaintiff's attorney requested the cancellation of 10,000.00 TL of the objection to the enforcement proceeding that he initiated in the amount of 150,000.00 TL. In this case, the plaintiff determined his receivable as 150,000.00 TL, but it was 10,000.00 TL." "He wanted to continue his pursuit for the part and filed a partial lawsuit as stated in the explanations above. Therefore, it was not deemed appropriate to decide to reject the case without going into the merits of the case as written, without considering that the plaintiff has a legal interest in filing a partial lawsuit." The provision was made as follows.

CANCELLATION OF OBJECTION CASE MEDIATION

The prevailing opinion is that the mediation procedure should be applied if the subject of the objection cancellation cases consists of types that fall within the scope of compulsory mediation, such as commercial cases, employee-employer disputes. Since there is no clarity in practice, it is observed that the parties apply for mediation in order to avoid loss of rights. However, as we explained above, cases for annulment of objection are accepted by the Supreme Court as declaratory cases, not actions for performance. It is not necessary to carry out the mediation procedure in order to file declaratory cases. For this reason, the case for cancellation of objection does not require applying for compulsory mediation. As a matter of fact, according to the decision numbered 2020/670 K. of the 7th Civil Chamber of the Sakarya Regional Court of Justice, there is no mediation requirement in cases of cancellation of objection. The decision in question is as follows;

"Considering the above detailed explanations as well as the organic connection between the enforcement proceeding and the action for cancellation of objection; the elements that characterize the [cancellation of objection] case are the cancellation of the objection of the debtor and the decision to continue the follow-up and the execution denial compensation (Article 67 of the EBL). Since, in terms of these dimensions, the said case is in the position of a case that is included in the whole of the follow-up procedure, essentially forms an integral part of it and is directed to ensure the functioning of the follow-up, the lawsuit is a condition. It remains outside the scope of the mediation institution. In fact, if the idea that the objection annulment case is, in its legal nature, a declaratory action aimed only at the debtor being subjected to enforcement denial compensation by canceling the objection and deciding to continue the proceedings, this analysis can be more easily reached, as the case will be completely isolated from its identity as a receivables case (Prof. Dr. Süha Tanrıver; Some Thoughts on Case Condition Mediation: TBB Magazine 2020 [147] March-April, Year: 32, p: 123); 2020) p:322)."

After the BAM decision we mentioned above, decisions continued to be made in the same direction. However, the 23rd Civil Chamber of the Supreme Court of Appeals made a decision on 04.12.2020 to resolve the dispute between the decisions of the civil chambers of the regional courts of justice, and in this decision, it ruled that the application for mediation is mandatory in cases of cancellation of objection to commercial disputes. The relevant decision is as follows:

"The case is about the request for legal protection directed to the court. Considering that the parties have the opportunity to dispose freely about the disputes aimed at the collection of money receivables, Article 5/A of the Turkish Commercial Code, which provides for compulsory mediation in commercial disputes, aims to resolve these disputes through mediation as an alternative solution method, thus aiming to collect the receivable with less time, less effort and expense, and to enable the parties to freely agree on and dispose of the amount of the receivable. "When taken into consideration, it is understood that cases for annulment of objection, which are commercial cases, are subject to compulsory mediation."

With this decision, the opinion of the Supreme Court became clear and the difference of opinion between BAM chambers was resolved with the decision that mediation is mandatory in cases of cancellation of objection in terms of commercial cases.

WILL A CANCELLATION OF OBJECTION CASE TURN INTO A CLAIM CASE WITH RECOVERY?

Reclamation Provisions regarding HMK 176-183. It is arranged among the articles. According to Article 180, it is possible to change the case through complete reformation. In accordance with the established jurisprudence of the Supreme Court, the case for annulment of objection can be converted into a claim case with full amendment. An example Supreme Court decision on the subject is as follows.

"While the case was about "cancellation of objection" to enforcement proceedings based on Article 67 of the EBL, since the petition submitted by the plaintiff's attorney requested that the case be carried out as a receivables case, it was not correct for the court to reject the case instead of examining and concluding the case as a receivables case, and it was deemed appropriate to reverse the decision." Supreme Court 15th HD. 2006/173 K.