The party from whom payment is requested with the claim that she/he is a debtor in the enforcement proceeding is called the debtor of the proceeding. The debtor of the proceeding, who thinks that she/he is not indebted and does not want to pay, may resort to various ways in order not to pay the money demanded by the creditor. One of these ways is the objections to the enforcement office within the scope of enforcement law and the complaints made to the enforcement court. In the enforcement procedure, the debtor can prove that she/he is not actually responsible for the debt subject to the proceeding and that she/he is not required to pay by filing a lawsuit.
In this guide, the lawsuits that the person who has been unfairly exposed to enforcement proceedings can file to prove that she/he is not a debtor or to get the refund of the payment made and the explanations about the questions on these lawsuits are given.
1. What Action Should be Filed by the Person Who Has Been Served a Payment Order to Prove She/He Is Not In Debt?
The lawsuit to be filed by the debtor to prove that she/he is not a debtor is a negative declaratory lawsuit, which is a kind of declaratory lawsuit. In the negative declaratory action, the court is asked to determine the absence of a right or legal relationship. If the court consideres the debtor justified in the case, it determines that the debtor does not owe the creditor. The debtor, who has a court decision proving that she/he is not a debtor, does not have to pay the creditor. Regarding the same debt, it is no longer possible for the creditor to file a lawsuit again or to demand its receivables through enforcement proceedings. By winning the negative declaratory action, the debtor is deemed to have proven definitively that she/he has no debt to the creditor and is released from paying.
(Enforcement and Bankruptcy Law art. 72).
2. When Should the Negative Declaratory Action Be Filed?
A negative declaratory action may be filed by the person against whom enforcement proceedings have been issued, following the commencement of this proceeding, or may be filed before the proceeding has begun. The point to be considered here is that the debtor party must have a legal interest in filing this lawsuit. In lawsuits filed after enforcement proceedings, as a rule, it is accepted that the debtor has a legal interest in bringing this lawsuit. Because the debtor is faced with the threat of seizure and sale of the property in the compulsory execution. It is possible for the debtor to file a lawsuit since it is considered that she/he has legal interest in filing a negative declaratory action, even if the enforcement proceedings have not been issued yet, but a warning or protest has been sent to the debtor to pay the debt.
(Enforcement and Bankruptcy Law art. 72).
3. Is It Possible for the Debtor to Request Compensation from the Creditor in the Negative Declaratory Action?
In a negative declaratory action, the debtor may request compensation from the creditor. If the proceeding that compels the debtor to file a negative declaratory action is found to be unfair and in bad faith, the court, upon the debtor’s request, may decide to compensate the plaintiff debtor for the damages incurred due to the lawsuit. The amount of compensation cannot be less than 20% of the amount of debt subject to the lawsuit.
(Enforcement and Bankruptcy Law art.72/5).
4. If the Debtor Has to Pay the Creditor Due to the Enforcement Proceedings While the Negative Declaratory Action is Still Pending, How is a Decision Made in the Negative Declaratory Action?
If the enforcement proceeding proceeds before the negative declaratory action is concluded with a decision and the debtor has to pay due to the enforcement threat, the negative declaratory action for the determination of not being indebted is continued. However, it is necessary to continue the negative declaratory action as a replevin case and a provision should be made in this direction. There is no need for the debtor of the proceeding to make a request for the negative declaratory action to turn into a replevin case, that is, to decide on the refund of the money paid in this lawsuit. The court should proceed as a replevin lawsuit by taking into account the payment made to the creditor and should decide not to determine that there is no debt as a result of the lawsuit, but to return the money paid.
(Enforcement and Bankruptcy Law art. 72/6).
5. What is a Debt Quittance Action and For What Purpose This Action is Filed?
The debt quittance action is a kind of negative declaratory case. The debt quittance action pertains only to the appeal of signature phase of the enforcement proceeding. If the debtor party makes an appeal of signature to the enforcement proceedings issued by the creditor based on an ordinary bill, the creditor party will apply for the suspension of appeal in the enforcement court in order to cancel this appeal and to continue the proceedings. The debtor can file a debt quittance action within 7 days against the creditor who has proven the receivables with the documents in her/his possession in the procedure of suspension of appeal and who provides the suspension of appeal of the debtor. Thanks to this case, the debtor can halt the enforcement proceedings issued against her/him, and also prevent the provisional attachment on her/his goods from turning into a final attachment and the creditor’s request for sale. If the debtor does not file this case the provisional attachment on her/his goods becomes a final attachment with the provisional attachment decision. This means that the creditor has become able to demand the sale of the goods on which there is a final attachment. In order to release the provisional attachment on the goods and to prove that the debtor is not indebted, it is absolutely necessary to file a case for debt quittance.
(Enforcement and Bankruptcy Law art.72).
6. When Can an Action for Quittance of Debt Be Filed?
The action for quittance of debt must be filed within 7 days from the announcement or notification of the decision for the suspension of the appeal. This period is a final term, and if the period expires, it is no longer possible to file an action for quittance of debt. The debtor can only file a negative declaratory action after this period. However, the negative declaratory action does not prevent the provisional attachment on the goods from turning into a final attachment, like the action for quittance of debt.
(Enforcement and Bankruptcy Law art.69).
7. Which Action Should be Filed by a Person Who Has to Make Payments for the Refund of the Money Although She/He Is Not In Debt During the Enforcement Proceeding Process?
The debtor who has to pay the debt subject to enforcement due to the threat of execution, although she/he is not indebted to the creditor, should file a replevin case in order to recover the money paid. If the debtor has not objected to the executive proceeding or if the objection has been revoked by the enforcement court upon the request of the creditor, the person who has to pay the money that she/he is not indebted can file a replevin case. In order for a replevin case to be filed, the payment order must be finalized. Since the debt paid before the payment order is finalized, it will not be considered as paid under the threat of execution, the debtor cannot file a replevin case. In this case, the action that can be filed will be an unjust enrichment lawsuit pursuant to the Code of Obligations.
(Enforcement and Bankruptcy Law art.72, Turkish Code of Obligations art. 78-82).
8. When Should the Replevin Case Be Filed?
The replevin case must be filed within a period of 1 year from the date of payment to the creditor under the threat of enforcement. The date of payment is the date the money is deposited into the account of the enforcement office, not the date the money is transferred to the account of the creditor. The debtor who misses the 1-year final term should file an action for unjust enrichment before the 2-year final term expires.
(Enforcement and Bankruptcy Law art.72, Turkish Code of Obligations art. 78-82).
9. What is the Competent Court in Negative Declaratory, Replevin and Quittance of Debt Actions?
The court in charge of the debtor’s negative declaratory, replevin and quittance of debt actions is determined according to the subject of the case. If the subject matter of the case does not fall under the jurisdiction of the special courts, these cases will be heard in the civil court of first instance. However, if the subject of the main case concerns, for example, labor law, consumer law or commercial law, these courts will also be responsible for the replevin case.
The competent court for these cases is the court of the place where the enforcement office is located or the court of the domicile of the creditor. The debtor of the proceeding can file a action in the official court located in a place preferred.
(The Code of Civil Procedure art.6, Enforcement and Bankruptcy Law art.72/end, art.69)
10. If the Creditor Files an Action for Withdrawal of Appeal, Can the Debtor File Negative Declaratory, Replevin and Quittance of Debt Actions?
If the creditor files an action for the withdrawal of appeal for the collection of the receivables, the debtor does not need to file these lawsuits again. The debtor must defend herself/himself in the action for withdrawal of appeal filed by the creditor. It is accepted by the Supreme Court and the doctrine that the case should be dismissed since the debtor has no legal interest in filing a new lawsuit in this case.
(19th Civil Chamber of the Supreme Court 2018/1702 E., 2020/1048 K.)
You can contact us for more detailed questions and problems related to the subject.
Best Regards.
Solmaz Law and Consultancy Team.
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