A quittance of debt case is a type of lawsuit filed by a debtor during enforcement proceedings to prove that she/he is not a debtor. Just like in the negative declaratory action, in this case, the debtor aims to prove that she/he is not a debtor. In fact, the context of this case does not differ from the negative declaratory action. However, there are some differences in terms of results and conditions since it must be filed during the enforcement proceedings and within the 7-day final term.
In this bulletin, we focused on the features and consequences of the quittance of debt action.
1. When Can an Action for Quittance of Debt Be Filed?
The quittance of debt action is filed when the debtor object to the signature on the ordinary bill in the payment order sent claiming that this signature does not belong to him/her, while the execution proceeding continues. To put it more clearly, here the debtor objected to the signature on the payment order, claiming that the signature on the deed did not belong to him/her and that he was not the debtor of the debt. With this appeal, the enforcement proceedings will be halted in favor of the debtor. At this point, the creditor must take action to continue the enforcement proceedings by applying for the suspension of the appeal. In the application made to the enforcement court for the suspension of the appeal, if the creditor is deemed right and the appeal is suspended, the debtor can file an action for the quittance of debt. By this lawsuit, the debtor tries to prevent the enforcement proceedings against her/him. In short, contrary to the speculations born by its name, it is an action that can be filed within a certain period of time and in the presence of certain conditions, within the framework of the law of prosecution, which has a very special position.
The debtor files the quittance of debt action in order to prevent the continuation of the enforcement proceedings by eliminating the decision of suspension of the appeal. The debtor, whose appeal has been temporarily suspended, must file this lawsuit within 7 days from the pronouncement or notification of the decision to revoke the appeal, in order to prove that he/she is not a debtor and to halt the enforcement proceedings.
There is no obstacle for the debtor to file a negative declaratory action to prove that he/she is not a debtor, without being limited to 7 days. However, in this regard, one must pay attention to the issue that is the subject of the following Supreme Court decision;
“If the creditor relied on the ordinary bill or bill of exchange in the execution proceeding without judgment through general attachment, and if the debtor is able to object to the signature on the deed presented as the grounds for the proceeding, there is no legal benefit in filing a negative declaratory action. Because the debtor may halt the execution proceeding without judgment by objecting to the signature. If the creditor requests the suspension of the appeal, he/she can defend himself/herself. If it is decided to suspend the appeal, the debtor can file the action for acquittance of debt pursuant to Article 69 of the EBL.
In the event that the creditor impresses an execution proceeding without judgment through general attachment based on ordinary bills, bills of exchange or one of the documents listed in Article 68 of the EBL, it must be accepted that the creditor has legal interest in filing a negative declaratory action if the debtor is able to object to the debt. Because in this case, the creditor can request the final refute of appeal (EBL art.68) and ensure the continuation of the proceedings. (In this case, it is accepted that the debtor, who has a document that will invalidate the proceeding document, has no legal benefit in filing a negative declaratory action.”[1]
2. Where to File the Action for Acquittance of Debt?
the Action for Acquittance of Debt is a lawsuit filed and heard in general courts, not in enforcement courts. For this reason, the judgment rendered as a result of this action is a final judgment in material terms. Understandably, a new action cannot be filed and a proceeding cannot be impressed for the same debt between the same parties. In other words, the disagreement will now be decided definitively, and the creditor-debt situation will be definitively determined by the court decision.
Since the general courts are in charge for the action for acquittance of debt, the general competent court may be the civil court of first instance, depending on the subject of the case. For example, in the proceedings related to the receivables arising from the rental relationship the civil court of conciliation may be in charge. It would be reliable to seek the help of an expert lawyer for the determination of the right court.
The competent court is the court of the place of enforcement or the court of the domicile of the creditor.
3. How to File the Action for Acquittance of Debt?
The Action for Acquittance of Debt, like every lawsuit, is filed by an application made to the competent court and depositing the necessary fees and expenses. However, in this case, there is a special security must be deposited, which constitutes the cause of action. The security must be presented/deposited no later than the day of the first hearing. The amount of the guarantee is an amount equal to fifteen percent (15%) of the receivable that is the subject of the lawsuit. If this guarantee is not presented until the first hearing, the court will decide to dismiss the case on procedural grounds without any further examination (EBL art.69/II, c.3).
The action for acquittance of debt is filed by the debtor against the creditor.
4. Investigation of the Court During the Action for Acquittance of Debt
The investigation of the action for acquittance of debt by the court is subject to general provisions. The court does not make a paper-limited investigation like the enforcement court. Since the lawsuit is filed upon the denial of the signature under the deed that is the subject of the proceeding, the investigation is made to determine whether the signature belongs to the debtor. If it is determined that the signature belongs to the debtor, this time, other investigation(s) will be made if the debtor has other objections such as payment, statute of limitations, and accommodation bill.
5. Decisions and Consequences of the Court in the Action for Acquittance of Debt
If the debtor wins the action for acquittance of debt, the court determines that the debtor is not a debtor and the enforcement proceedings against this person shall be halted. Execution proceeding without judgment becomes void and if it has been placed, the lien on the debtor’s goods will be null and void. It is no longer possible for the creditor to claim the right to claim by filing a new lawsuit. The court also condemns the creditor to pay compensation not lower than twenty percent of the receivable. The compensation that the debtor was condemned to be paid by the enforcement court with the decision of the suspension of appeal will also be void when this case is won.
If the creditor wins the action for acquittance of debt, the suspension of appeal turns into a final refute, and if the debtor’s properties are seized, the provisional seizure of these goods turns into a final lien. Now that the creditor has a final lien, she/he can request the sale of the debtor’s goods. If the debtor’s property has not been seized before, the creditor may request the sale of the debtor’s goods by continuing the enforcement proceedings. By this decision, the debtor is condemned to pay compensation to the creditor, not less than twenty percent of the debt. By the decision of the enforcement court to suspend the appeal, the compensation that was previously ruled against the debtor becomes final and the debtor has to pay two separate compensations (EBL art.68-69).
6. What Can a Debtor Do If the Action for Acquittance of Debt Is Not Filed in Time?
The action for acquittance of debt is filed within a 7-day final term. The action filed after this period will not be an action for acquittance of debt and will not bear legal consequences of this action. Filling the action for acquittance of debt halts the proceedings against the debtor, if there is a provisional seizure on the debtor’s goods, it prevents this seizure from turning into a final lien, and thus prevents the creditor from requesting the sale of the goods. It also prevents the suspension decision from turning into a final refute decision. If the debtor does not file this lawsuit in time, she/he cannot benefit from all these opportunities. The enforcement proceedings against the debtor continue, the provisional seizure on the goods turns into a final lien and the goods can be sold. However, there are still remedies available to the debtor. If the debtor thinks that she/he is not indebted, she/he can try to prove that she/he is not indebted by filing a negative declaratory action in the general courts. In this case, the debtor may prevent the payment of the cost of the goods sold to the creditor on the condition of depositing a guarantee. If the debtor wins the negative declaratory action, the enforcement proceedings against this person become null and void, and the proceeding will be halted, and it will not be possible for the creditor to file a new lawsuit or initiate a proceeding regarding this claim.
If the debtor has paid the debt to the creditor during the enforcement proceedings, the debtor may file a replevin case and demand the money paid back, even though she/he is not a debtor under the threat of execution. In a Supreme Court decision, this situation is expressed as follows;
“After the debtor has paid the debt to the enforcement office, that person can no longer file a negative declaratory action. In this case, there is no legal benefit in determining that the debtor is not just a debtor. After that, it will be possible for the debtor to file an action for the recovery of the money paid, which is the replevin case.”[2]
Conclusion
In the event the suspension of appeal of the debtor, the action that must be filed within 7 days from the notification of this decision is called the action for acquittance of debt. Winning this lawsuit, which is important in terms of proceeding law, is very important for the debtor and creditor parties. Because the judgment to be given as a result of this lawsuit will constitute a final judgment for the parties and the same claim will not be the subject of lawsuits and proceedings again. The filing and follow-up of the case with the help of an expert lawyer, which must be filed in a definite and short time, and which has a special feature, may be an important determinant of the outcome of the case.
For more information, you can see the other articles on the suspension of appeal on our site, and contact the Solmaz Law and Consultancy team for detailed information.
Best Regards.
REFERENCES
KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, p.136-138.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, p. 170-171.
Supreme court assembly of civil chambers, 2011/19-622 E., 2012/9 K.
19th Civil Chamber of the Supreme Court, 2012/6685 E., 2013/1117 K.
Enforcement and Bankruptcy Law
[1]19th Civil Chamber of the Supreme Court, 2012/6685 E., 2013/1117 K.
[2]Supreme court assembly of civil chambers, 2011/19-622 E., 2012/9 K.
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