The payment order sent to the debtor in the execution proceeding may be finalized because the debtor has not objected or the objection made by the debtor has been withdrawn or cancelled. If the payment order is finalized, the next stage in the execution proceedings is the seizure. At the request of the creditor, the bailiff seizes the debtor’s property limited to the amount that will meet the creditor’s receivables. In the execution process, only the property belonging to the debtor can be seized. It is not possible to seize a property belonging to someone else for the debtor’s debt. The debtor’s property is seized regardless of whether it is in the possession of the debtor or someone else. The subject of replevin cases is to determine whether the seized property belongs to the debtor, and ultimately to determine that the seizure is valid or not. The parties to this case and the rules of proof to be applied in the case differ depending on who has possession of the property.
In this bulletin, we have explained the detinue case filed by the creditor against the third party for the third party’s claim indicating that the seized property belongs to that person and not to the debtor in the event that the movable property in the possession of someone else is seized because it is thought to belong to the debtor.
İçindekiler
1. The Third Party’s Replevin Claim
The goods belonging to the debtor can be seized for the debtor’s property wherever they are located in the country. It is possible to seize a movable property by considering it to belong to the debtor, although it is in the posession of another person. This seizure can take place at the claim of the debtor or the claim of the creditor. Upon the seizure of the goods in the third party’s possession, the third party holding the goods may claim that these goods belong to him/her or not to the debtor, or that the third party has the possessory lien on these goods. This is called a third-party detinue claim. If the property, which is not in the possession of the debtor but a third party, is seized for the debt of the debtor, the third party may claim detinue in person or through his/her representative, and the debtor may also claim detinue on behalf of the third party. In the decision of the Supreme Court on the issue, this situation has been stated as follows;
“The replevin claim may be asserted by the third party or the debtor on behalf of her/him, based on ownership or other real rights on the seized goods. The company manager H…, who was present in the lien on 11.10.2010, claimed that the company named H… JSC was operating at the lien address and that the seized properties belonged to the third party E…. Based on the rights specified in the concrete case, there is no replevin claim filed by the Defendant H … JSC or the debtor on her/his behalf. Therefore, the case filed against the aforementioned defendant company should be dismissed due to the lack of capacity to sue.”[1]
In another decision, the following evaluation was made about who will make the detinue claim in terms of companies;
“The right to claim detinue on behalf of the company holding the seized property belongs to the authorized body of the company. Since the detinue claim of the company employee who is not a company official is not valid, the lawsuit filed by the creditor should be dismissed due to the absence of litigation conditions.” [2]
2. The Parties to The Case
This lawsuit is filed by the creditor against the third party. As a rule, the defendant is the third person holding the property. However, the debtor who declares that the seized property belongs to the third party becomes the defendant. The Supreme Court states that the obligatory opponent is a third party and it is not possible to file a lawsuit against the debtor alone;
“In the detinue cases to be filed by the creditor party pursuant to Article 99 of the EBL, the third person claiming detinue is the obligatory defendant. It should be ensured that the third person, who is not presented as a defendant in the petition, participates in the case in accordance with his method.”[3]
3. Filing the Replevin Case, Presumptions and Proof
The third person who claims ownership over the property, rights and receivables that are in the possession of a third person other than the debtor, that is, in the possession of someone other than the debtor, is presumed to be the owner of that property. This objection, which is regarded as a replevin claim, is recorded by the officer applying the seizure in the lien minute. In this case, the goods are left to the third party as a trustee if the third party assents. The bailiff gives the creditor 7 days to file a case against the third party in the enforcement court (EİK art.99). The case must be filed within this 7-day period. Otherwise, the case will be dismissed on procedural grounds. In the decisions of the Supreme Court, it has been emphasized that this period is final and will not be repeated as follows;
“Even though the executive director has given time to the creditor to file an appeal case for the detinue claim against the third person who made a claim for detinue within 7 days, the creditor has not filed a lawsuit. The time given by the enforcement office to file a lawsuit against the creditor upon the second seizure of the same machine at the request of the creditor does not create a new right.”[4]
The burden of proof in the replevin case is on the creditor. It is necessary to prove that the property belongs to the debtor. Because the property of movable property is deemed to belong to the person having the possession of it. The creditor has to refute this legal presumption and prove the opposite. In this case, the creditor must demonstrate with evidence that the third party does not have a right as claimed, that the property belongs to the debtor, therefore the seizure is valid and the continuation of the proceedings must be decided. The creditor may try to prove that there is a collusive relationship between the debtor and the third party, that these persons have rapport or common interests for some reason, and that this claim is made with the aim of smuggling goods from the creditor. Apart from this, it can also use documents proving that the property belongs to the debtor. If the creditor can prove these issues, the detinue claim made by the third party or the debtor on the behalf of the third party is canceled by the court. Seizure and proceeding continue. If the creditor cannot prove these issues, then the third party wins the detinue claim case as per the legal presumption. if the claim is based on the right of ownership, the attachment on the goods is released and the creditor cannot continue the proceeding for these goods and cannot ask for sale.
Another issue is that when a lawsuit is filed, the sales deadlines for the goods in question are suspended. If it is determined that the property belongs to the debtor as a result of the detinue lawsuit, the deadlines continue to run.
4. The Bank’s Claim of Pledge or Retention the Deposits of the Debtor as Detinue Claim
In addition to the debtor’s movable property in the hands of third parties, the debtor’s rights and receivables may also be seized for the debtor’s debt. For example, since the money in the debtor’s bank account is held by the bank, it is considered the debtor’s right to claim from the third party. The seizure of this right is carried out in accordance with Article 89 of the EBL. Here, the bailiff issues a lien notice and sends it to the bank. In the notice, it is warned that the money of the debtor in the bank is seized, and if there is no such money belonging to the debtor, the bank should object to the notice within 7 days, otherwise this money will be deemed to be in the bank.
In response to this notice, the bank may object that the money belonging to the debtor is not in their bank, or it may claim that the bank has the right of pledge or retention on the money belonging to the debtor in the bank. According to the Supreme Court, the bank’s claim of pledge or retention is in the nature of a detinue claim. Indeed, the following Supreme Court decisions exemplify this issue;
“The objection made by the bailiff against the lien notice sent in accordance with the article 89/1 of the EBL, stating that the bank has the right to pledge or retention on the money in the debtor’s account, is a detinue claim by the third party. The practice of our Department and the Supreme Court, which has gained stability since 2009, is in this direction. In this case, the bailiff must apply the 99th article of the EBL and give the creditor time to file a detinue case.”[5]
In the detinue case filed by the creditor upon the bank’s detinue claim, the proof must be confirmed by expert examination. In this regard, the Supreme Court rules as follows;
“As of the date of the attachment decision, it should be accepted that whether the debtor owes a loan to the defendant bank, which is the third party, is determined by expert examination, and if there is a loan receivable, there is a right of pledge and retention limited to this amount.” [6]
“In order for the bank to claim remuneration as a third party, the entire loan debt must be unpaid as of the date of the attachment decision, this situation, which requires expertise, must be determined by the expert or experts, and if there is any unpaid loan receivable, it should be accepted that the third party bank has the right of pledge and retention on the accounts subject to the lawsuit, limited to this amount.”[7]
Conclusion
A detinue lawsuit may be filed by the creditor against the third party, who claims that the movable property or right in the possession of another person, considering that it belongs to the debtor, belongs to her/him. In this case, the creditor tries to prove that the property belongs to the debtor, not the third party. But the third person in the case stays one step ahead. Because, according to the law, the person who owns the movable property is considered its owner. For this reason, the fact that the goods belong to a third party is a preliminary acception in the case. The creditor can win the case by proving otherwise.
Detinue cases are technical cases. The rules of proof in the case pertain. Getting professional help regarding legal issues in this matter will positively affect the course and consequence of the case.
Best Regards.
Solmaz Law and Consultancy Team.
References
GÜNEREN, Ali, (2014), İcra ve İflâs Hukukunda İstihkak Davaları, Yetkin Yayıncılık, Ankara, 3. Baskı.
ASLAN, Kudret, (2005), Hacizde İstihkak Davası, Doktora Tezi, Ankara Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk (Medenî Usul Ve İcra–İflâs Hukuku) Anabilim Dalı, Ankara.
17th Civil Chamber of the Supreme Court, 11.06.2012, 3935-7593.
17th Civil Chamber of the Supreme Court, 02.04.2012, 3472-3929.
21st Civil Chamber of the Supreme Court, 23.02.2004, 11455-1387.
17th Civil Chamber of the Supreme Court, 22.03.2012, 1114-3504.
17th Civil Chamber of the Supreme Court, 2.4.2012, 974-3914.
17th Civil Chamber of the Supreme Court, 18.02.2013, 2012/16323-1718.
8th Civil Chamber of the Supreme Court, 10.06.2013, 5245-8748.
[1] 17th Civil Chamber of the Supreme Court, 11.06.2012, 3935-7593.
[2] 17th Civil Chamber of the Supreme Court, 02.04.2012, 3472-3929.
[3] 21st Civil Chamber of the Supreme Court, 23.02.2004, 11455-1387.
[4] 17th Civil Chamber of the Supreme Court, 22.03.2012, 1114-3504.
[5]17th Civil Chamber of the Supreme Court, 2.4.2012, 974-3914.
[6] 17th Civil Chamber of the Supreme Court, 18.02.2013, 2012/16323-1718.
[7]8th Civil Chamber of the Supreme Court, 10.06.2013, 5245-8748.
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