7.1 PETITION FOR ANNULMENT OF OBJECTION DUE TO A PROMISSORY NOTE NOT BEING A NEGOTIABLE INSTRUMENT

 

TO THE ISTANBUL PRIMARY COMMERCIAL COURT

PLAINTIFF: …………….

ADDRESS:DD. Singing. Tic. Inc. (TIN:……..)

ATTORNEY: Attorney SY-UETS

DEFENDANT: ZZ

SUBJECT: Request for the annulment of the objection in the case file numbered ………… of the 131st Enforcement Office of Istanbul, the continuation of the enforcement proceedings, and the awarding of 20% enforcement denial compensation against the defendant acting in bad faith.

 

EXPLANATIONS

 

1) THE DEFENDANT HAS BEEN REQUESTED TO HAVE AN ATTACHMENT ORDERED DUE TO AN UNPAID DEBT OWED TO THE PLAINTIFF COMPANY.

The defendant owes the plaintiff company money, and the promissory note issued for …………. TL with a maturity date of …………. has not been paid by the defendant debtor. Consequently, enforcement proceedings were initiated in the Istanbul 131st Enforcement Office under case number …………. The case, which had been closed, was reopened and registered under case number …………., and a seizure order was requested. The defendant debtor filed an appeal with the Istanbul 101st Enforcement Court, alleging irregular service of process and statute of limitations. The court, in its decision dated …………, case number …………, ruled to accept the complaint regarding the irregular service of process, to accept the statute of limitations objection, and to suspend the enforcement proceedings

2) THE INSTRUMENT IN QUESTION DOES NOT POSSESS THE CHARACTERISTICS OF A NEGOTIABLE INSTRUMENT

Since the promissory note in question lacks the mandatory elements listed in Article 776 of the Turkish Commercial Code (TTK) required for negotiable instruments, it is not possible to resort to the attachment procedure specific to negotiable instruments . Therefore , it is evident that following such an application would be an erroneous action. For this reason, the probative value of ordinary promissory notes, the admission of the note, and the procedures regarding claims of forgery should be considered within the framework of Articles 205 and 202 of the Code of Civil Procedure (HMK) .

3) THE DEBT HAS NOT EXPIRED DUE TO THE STATUTE OF LIMITATIONS

the enforcement proceedings were time-barred because the last action in the enforcement file was taken on …………… and
more than four years passed until the renewal date of ………,
the claim for debt through attachment of negotiable instruments
was not time-barred as the defendant debtor did not pay the debt. Therefore,
an enforcement proceeding without a court order was initiated with the Istanbul 131st Enforcement Directorate's file numbered …………. E., and
a payment order was sent to the defendant debtor. However, the defendant objected to the debt within the legal period,
causing the enforcement proceedings to be suspended.

4) THE PLAINTIFF'S OBJECTION IS UNJUSTIFIED

The objection is unfounded and baseless. The claim has not expired because it is
subject to a 10-year statute of limitations.
According to Article 67 of the Enforcement and Bankruptcy Law, a creditor whose claim is objected to
may file a lawsuit for the annulment of the objection within one year from the date of notification of the objection.
The court must decide to annul the objection on the grounds that it is unfounded. Furthermore,
in cases of bad faith or unjustified objection, enforcement denial compensation is also requested pursuant to Article 67 of the Enforcement and Bankruptcy Law.
This enforcement denial compensation cannot be less than 20% of the awarded claim.
This compensation should be awarded because the defendant's objection was made in bad faith or unjustified
.

For the reasons explained above, it has become necessary to request the annulment of the unjustified and unfounded objection, the continuation of the enforcement proceedings, and
of enforcement denial compensation against the malicious defendant, amounting to no less than 20% of the claim
.

 

LEGAL GROUNDS:
Turkish Commercial Code, Turkish Code of Civil Procedure, Turkish Code of Obligations, Turkish Enforcement and Bankruptcy Law, and all relevant legislation.

 

EVIDENCE
• Enforcement file number …/… E. of the … Enforcement Directorate
• Promissory note (original/copy)
• Contract/documents relating to the commercial relationship between the parties
• Witness statements
• Expert examination
• Oath
• All kinds of legal evidence

 

CONCLUSION AND REQUEST

For the reasons explained above, we respectfully request and demand that the court rule as follows: 1. that the unjustified objection be dismissed and the proceedings continue; 2. that the defendant, acting in bad faith, be ordered to pay 20% enforcement denial compensation; and 3. that the court costs and attorney's fees be borne by the opposing party

 

 

Plaintiff's Attorney
, SY