TO THE ENFORCEMENT LAW COURT ON DUTY
REQUEST FOR AN INJUNCTION
EXECUTION FILE NO:
PLAINTIFF/DEBTOR :
ATTORNEY :
DEFENDANT/CREDITOR :
ATTORNEY :
SUBJECT : Our objection regarding the proceeding.
DATE OF NOTIFICATION : It was received on the date of the lawsuit.
EXPLANATIONS
1-) In the execution file with the above information, the defendant/creditor initiated an execution proceeding against my client for bills of exchange, and the relevant payment order was notified to the client on the date stated above. For this reason, it is clear that this objection is within the legal period.
2-) My client is the first beneficiary of the bond in the enforcement proceeding subject to the case. It appears that he later endorsed the bond to the defendant and became the endorser. The defendant/creditor did not draw a protest of non-payment to us and the drawer. Therefore, the defendant/creditor has lost its right of recourse to us, the endorser, and is now only entitled to turn to the drawer. As a matter of fact, Article 714 paragraph 3 of the Commercial Code
“(3) A non-payment protest to be drawn in respect of a policy which contains a condition that it must be paid on a certain day or after a certain period of time from the day of issue or sighting, must be drawn within two business days following the day of payment.”
The article stipulates that it is obligatory to draw the protest of non-payment. Again, the sanction for failure to draw this protest is set forth in Article 730 of the same law titled “Loss of the right to apply”:
“(1) The bearer;
a) Present a policy which is payable on sight or after a certain period of time after sight,
b) Issuing a protest of non-acceptance or non-payment,
c) If there is a record stating that the policy “will be returned without expense”, submit the policy for payment,
If he misses certain deadlines, he loses his rights against the endorsers, the issuer and other debtors, except the acceptor.”
With its words, it clearly states that it will lose its right to apply to the endorsers. As we have mentioned above, my client is the endorser in this enforcement proceeding and the defendant holder has not filed any protest neither to the drawer nor to us in the case law of the 12th Civil Chamber of the Court of Cassation dated 16.02.2016, numbered 2016/617 Esas, 2016/3995 Decision:
“The creditor holder cannot pursue the beneficiary and endorser without filing a protest under the conditions of the aforementioned article. In other words, the holder loses the right of recourse against the beneficiary and endorser, since the issuer of the bill has not protested. Pursuant to Article 170/a-2 of the BEC, the enforcement court must ex officio investigate whether the creditor has the right to pursue pursuant to the law of foreign exchange.”
As it can be easily understood from his words, it is clear that the defendant does not have the right to apply to my client, who is the endorsee. Because, as we have tried to explain, according to the Turkish Commercial Code No. 6102, if the non-payment protest is not drawn to the drawer within the time limit, the right of recourse to persons other than the drawer and the avalisti is lost.
3-) As a result; we are of the opinion that the creditor is not a creditor of my client, who appears as a debtor in the enforcement proceeding subject to the lawsuit, and that he has no right to follow up in accordance with the law of foreign exchange, and for this reason, my client should be removed from the state of indebtedness in the enforcement proceeding subject to the lawsuit.
LEGAL GROUNDS EBL, TCC, CCP and other legal legislation
LEGAL EVIDENCE The execution file with the above information, all kinds of evidence that can be submitted
REQUEST and CONCLUSION: As a result of the reasons presented and explained above
1-) First of all, the execution proceedings in the execution file with the information written above shall be suspended,
2-) With the acceptance of our justified lawsuit, to determine that the creditor does not have the right to pursue my client in accordance with the enforcement proceedings based on the bill of exchange, to remove my client’s indebtedness, and to cancel the payment order against my client in this respect,
3-) To charge the defendant with the costs of the proceedings and attorney’s fees,
I respectfully request and demand a decision on behalf of the plaintiff.
Plaintiff Attorney
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