“A confirmative decision by the Regional Court of Appeal; the Burden of Proof is on the respondent party, who claimed that the promissory notes guaranteed a credit agreement”

October 13, 2022 | NEWS 
By Gokhan Bozkurt, Mustafa Bozkurt 

The 16th Chamber of the Istanbul Regional Court of Appeal has recently rendered that if a promissory note, subject to the case, was issued as a guarantee of a credit agreement or a loan, the burden of proof is on the respondent party than the plaintiff. That is the point that when a respondent argues that a promissory note which is the subject of the case, was issued as a guarantee of a loan or debt, the respondent party needs to prove his arguments to set out that he is a creditor.

Background
 


In a case held before the Istanbul 8th Commercial Court [1], the plaintiff stated that he was a shareholder of a company that was not the party in the case. After a while, he transferred his shares in the company to his son. He was a guarantor of a loan that the company used it its financial needs. According to the scope of the credit agreement, he signed and issued two promissory notes dated May 5, 2004, and May 31, 2005, with the total amount of $600,000 to the lender bank, the respondent, as a guarantor. The company paid the loan, and the bank released the lien pledged on the plaintiff's property. The promissory notes were supposed to be returned to the plaintiff by the creditor, but it did not. 
 
Moreover, the respondent sought a provisional attachment from the court and initiated enforcement proceedings to collect the amount of the promissory notes against the plaintiff. Summarizing these facts in his pleading, the plaintiff alleged that the respondent was not in good faith. Subsequently, the plaintiff sought from the court to render that he was not in debt to the respondent and putting the paid-promissory notes to the proceedings, the respondent acted in bad faith. Therefore, the respondent has to pay bad-faith compensation to the plaintiff. 
 
In its petition, the respondent asserted that it pledged the plaintiff's property in return for the company's loan. Due to not paying off the loan, enforcement proceedings were initiated against the plaintiff, as a guarantor, and the company. Therefore, the enforcement proceedings to collect the remaining debt are justified, and the court has to dismiss the case.

Decision
 

 
The Istanbul 8th Commercial Court ruled in its judgment that the respondent party accepted that the plaintiff issued the promissory notes to the respondent in return for the loan. The company made repayment of the loan, and the debt was paid off. Therefore, the plaintiff is not in debt to the respondent and has the right to bring the case. The court, however, dismissed the compensation request of the plaintiff, reasoning that the bank did not act in bad faith by initiating enforcement proceedings knowing these facts.

Both the respondent and plaintiff appealed the court’s decision. 

The 16th Chamber of the Istanbul Regional Court of Appeal ruled [2] that the respondent bank acknowledged in its pleadings that the promissory notes were taken as the guarantee of the credit agreement. The Chamber, therefore, did not accept the argument set forth by the respondent in the appellate stage that the notes were not the security of the loan. The court also underlined that it is understood that the notes were issued as a guarantee of the credit agreement. Therefore, the respondent must prove that it is the plaintiff's creditor. However, the respondent did not.
 
The respondent appealed the decision of the 16th Chamber of the Istanbul Regional Court of Appeal on the same grounds before the Court of Cassation. The appellate request, however, was refused.[3]

Takeaways

 

According to article 190(1) of the Turkish Civil Procedural Code, a plaintiff must prove the claim he outlined in his pleading. However, particularly in the cases of negative declaratory actions, if a respondent asserts that the promissory notes, which are the basis of the claim, were issued as the guarantee of the debt or credit agreement, the burden of the proof changes, and the respondent must prove that he is the creditor. Therefore, particularly in the cases of negative declaratory actions, you should consider your defense arguments cautiously regarding promissory notes not to take the burden of proof onto you.  
 
 
If you have any questions about the issues addressed in this article, please do not hesitate to contact us:
 
Gokhan Bozkurt
Email: [email protected]
Phone: +1 212 209 7158
 
Mustafa Bozkurt
Email: [email protected]
Phone: +90 212 214 7040
 
 
[ENDNOTES]
 
[1] 12/01/2016, 2014/855 – 2016/899
 
[2] 12/30/2019, 2017/3428 – 2019/2867
 
[3] 12/06/2021, 2020/4485 – 2021/6890