Replevin cases are the lawsuits filed for the continuation of the seizure by proving that the property belongs to the debtor, or for the rescue of the seized property, even though it does not belong to the debtor. It varies according to who filed the lawsuit and for what purpose the property is in the hands of whom it is seized. The parties and the proof rules of the lawsuits filed as a result of the seizure of the property differ in terms of whether it is in the possession of the debtor or it is in the possession of another, assuming that these properties belong to the debtor.
In this bulletin, we focused on the seizure of the property while it is in the possession of the debtor or while it is in the possession of a third party along with with the debtor. Since the legal consequences of both cases are the same, considering them together will provide a better understanding of the subject.
İçindekiler
1. Replevin Cases in Case of Seizure of the Goods While in the Possession of the Debtor
During the seizure of the movable in the possession of the debtor, the third party may claim that the property belongs to him/her and not to the debtor. This claim made by the third party within 7 days of learning about the lien is called a replevin case. The debtor may also claim that the property belongs to the third party, not himself/herself. In both cases, it is claimed that the seized property, despite being in the possession of the debtor, cannot be seized because it actually belongs to someone else, not the debtor.
If such a claim is made during the lien or, in the event that the lien is learned at a later date, within 7 days from this date; The bailiff making the lien records this claim in the lien minute. Following this, the executive directorate notifies the third party’s claim to the creditor and debtor parties and warns that if they object to this claim, they must submit it within three days. If the creditor and the debtor do not object within this period, they are deemed to have accepted the replevin claim and that the seized property belongs to the third party. In such a case, if the attachment on the property is released but the possessory lien is claimed, the property is deemed to have been seized together with the possessory lien of the third party.
If the creditor or debtor objects within the three-day period given by the enforcement office, the enforcement officer sends the file to the enforcement court. The enforcement court first makes a decision to continue or postpone the proceedings. If it decides to postpone it, a guarantee is taken from the third party.
As a result of the replevin procedure carried out in this way, the third party, who has been notified of the postponement or continuation decision of the enforcement court, may file a replevin case in the same court within 7 days. In the event that the property is seized while in the possession of the debtor, if the third party claims replevin case, the plaintiff is the third party. In this case, the third party tries to release the attachment on the property by claiming and proving that the property belongs to him/her and that it was in the possession of the debtor during the lien for some reason. In this case, the presumption of ownership is in favor of the debtor and therefore the creditor, since the property was seized while in the debtor’s possession. Because the property is considered to belong to the debtor and therefore it can be sold for the debt of the debtor and the creditor’s receivable can be paid out of this money. In fact, this situation is basically based on the provisions of the property law regarding the presumption of ownership regarding movables. As a rule, the owner of a movable property is the person who holds it, that is, the person who owns that property. This is accepted in the nature of things. Proving the contrary of this presumption is only possible by showing strong and convincing evidence. In the next title, detailed explanations and examples of judicial decisions are given on this presumption of ownership, which is considered as it is in the interest of the debtor, and how the presumption should be refuted.
2. Replevin Cases In Case of Seizure of the Goods while in the Possession of a Third Person along with the Debtor
In the article 97/a of EBL, replevin claim and replevin case are regulated for the seizure made in case the debtor and the third party hold the goods together. If the goods are in the possession of the debtor and the third party, if they hold them together with the family members living with the debtor or if they establish de facto sovereignty over the goods with their partner in the same workplace, the goods are deemed to be in the possession of the third party and the debtor. However, if the property belonging to the company’s legal entity is seized due to the personal debt of a company partner, it cannot be accepted that the debtor and the company jointly hold this property.
If the debtor and third parties hold the movable together, the action is taken as if the property is in the debtor’s possession. Here, there is a regulation for the benefit of the creditor, the ownership of the property is deemed to belong to the debtor and the attachment is made. The exception to this presumption is seen in the seizure of vehicles registered in the traffic registry. This presumption will not be effective for land vehicles (ELB art. 97/a, HTL. Art.20)
The third party must prove the contrary of this presumption envisaged for the benefit of the creditor. The third person can prove how she/he got the property and by showing the legal and actual reasons and events that require it to be in the possession of the debtor. To put it more clearly, the third party has to prove when and how she/he bought the goods, that she/he had the power to buy the goods at that time, and for what reason she/he held the goods together with the debtor. For example, it is possible for the third person to claim that she/he bought the property to use in her/his own home, but that she/he lent it to her/his neighbor because the neighbor needed it that day. All kinds of evidence, including witnesses, can be used as proof. However, the evidence presented by the plaintiff to the court must be convincing, sufficient to give rise to an opinion in the court, and must be strong enough to leave no room for hesitation. The Supreme Court considers that the invoices issued close to the seizure date were obtained for the purpose of eloigning goods from the creditor. Again, invoices and tax registration issued after the proceeding are not considered sufficient for proof. In short, documents issued close to the seizure date will not be suitable for proof. Below, you can find the examples of Supreme Court decisions on the subject.
“The plaintiff and the debtor are mother and son and reside in the same house. Since the lien is carried out in the house where the plaintiff third party and the debtor live together, the presumption of ownership is in the interest of the debtor, hence the creditor, in accordance with EBL art. 97/a. However, it is always possible to prove the contrary of this legal presumption with strong evidence. In the seizure, the refrigerator has been seized and stored. The ownership of the refrigerator, which is documented with the invoice that it was purchased, after the refrigerator is seized and stored, belongs to the plaintiff mother”.[1]
“The defendant third-party company was established by former employees of the debtor shortly before the debt was due. There is no dispute between the parties about the presence of parcel packages belonging to the debtor at the place of attachment. In these circumstances, it must be accepted that the presumption of ownership in article 97/a of the EBL is for the benefit of the debtor and therefore the creditor. The execution manager’s mistaken application of EBL article 99 does not result in a change of the burden of proof.”[2]
In another decision referring to the relationship between the legal entity of the company and the partner of the company, the Supreme Court decided as follows;
“Even if the defendant debtor is a partner of the plaintiff company, the address of the debtor is different than the operating address of the company in the bond. The seizure was made at the company address and the payment order was not notified here. The presumption of ownership is for the benefit of the plaintiff.
Since the limited company has a separate and independent legal personality from its partners,; its goods, receivables and rights belong to legal entities, not partners. Given that even the partners cannot claim rights on the assets of the company, it is impossible for the creditors to take action with such a claim. As it cannot be proved by the creditor that the proceeding bond is born from a legal relationship that indebted the plaintiff company, the attachment must be released with the acceptance of the case.”[3]
In another decision, the replevin case was dismissed on the grounds that there is an “organic bond” between the third party company and the debtor, and that although there is no official relationship, to be more precise, the company and the debtor are in close contact in terms of their activities and personal relations;
“The seizure has been made at the address where the payment order was served to the debtor company and in the presence of the company representative. The plaintiff third party company and the founding partners of the debtor company are the same persons. The machine lease agreement does not cover the date of seizure, and it is always possible to be drawn up due to the relation between the two companies. Since the legal presumption cannot be proven otherwise, the case should be dismissed.”[4]
In another decision made on the same issue;
“Although the debtor does not seem to have a legal relationship with the company, it is understood that the debtor has participated in the activities of the company where he/she is the secret partner of the company. Although the debt may seem like a personal credit card expenditure at first glance, it is seen that the expenditures are often large expenditures related to the field of activity of the third party company. For this reason, it should be accepted that the seized property is in the possession of the plaintiff and the debtor together, and therefore the presumption of ownership is in favor of the debtor and therefore the creditor. The contrary of this legal presumption must be proven by the plaintiff third party with conclusive and strong evidence. It cannot be said that the contrary of the legal presumption of ownership is proven with conclusive and strong evidence with the tax registration and invoices submitted by the plaintiff and containing the dates after the date of birth of the debt.”[5]
Conclusion
If the property is seized while it is in the possession of the debtor, the debtor is in an advantageous position in replevin cases since the owner of that property will be deemed to be indebted. The third party, who tries to prove that the property belongs to him/her and not to the debtor, must show strong and convincing evidence in this case. In the event that the debtor claims that the goods do not belong to him/her in order to eloign goods from the creditors, or a third party other than the debtor falsely claims that the goods belong to him/her in order to aid and abet the debtor in this regard; if a connection, close relationship, partnership or so on and so forth between the debtor and a third party is determined, the presumption is reversed. After this point, the debtor and the third party will have to prove that the property belongs to the third party by showing strong evidence.
The refutal of presumptions and the act of proof in replevin cases require expertise. Since it is a highly technical case, getting professional legal assistance will positively affect the result of the case.
You can contact our team for legal questions and problems related to the subject.
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.
Supreme Court Assembly of Civil Chambers, 04.10.2006, 21/618-618.
17th Civil Chamber of the Supreme Court, 01.10.2012, 9304-10317.
17th Civil Chamber of the Supreme Court, 30.01.2012, 2011/11712-746.
17th Civil Chamber of the Supreme Court, 26.12.2011, 9216-12912.
17th Civil Chamber of the Supreme Court, 10.10.2011, 6777-8896.
[1] Supreme Court Assembly of Civil Chambers, 04.10.2006, 21/618-618.
[2] 17th Civil Chamber of the Supreme Court, 01.10.2012, 9304-10317.
[3] 17th Civil Chamber of the Supreme Court, 30.01.2012, 2011/11712-746.
[4] 17th Civil Chamber of the Supreme Court, 26.12.2011, 9216-12912.
[5] 17th Civil Chamber of the Supreme Court, 10.10.2011, 6777-8896.
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