Executive proceedings are a coercive legal procedure to ensure that the debtor who has not paid the debt pays it. Suppose the debt is not paid within the period given to the borrower to pay the debt by the payment order and the executive proceedings are finalized. In that case, confiscation is placed on the values of the borrower’s assets. The purpose is to convert the values of these assets into money and to pay the creditor’s right to receivables from the funds obtained as a result.
The foreclosure process can only be placed on the goods belonging to the borrower. It is impossible to foreclose on someone else’s interests for the debtor’s debt. The person we will describe here as “someone else” or “a third party” is everyone other than the debtor, including the debtor’s family members. If the property of third parties other than the debtor has been foreclosed on during the foreclosure process, the owner or the debtor himself may claim that this property does not belong to them. This is called a claim allegation. The goods on which there is a claim replevin have become contentious goods in terms of foreclosure. The seizure of disputed goods is also possible. However, they must be confiscated if it is still necessary, including after non-disputed goods, by the principle of organizing foreclosures. The cases filed to determine whether the foreclosure on such disputed interests is valid are called Replevin Case.
This bulletin will talk about the Replevin Cases and their terms in general.
1. The Replevin Case and Replevin Case Terms
A replevin claim asserts that a third party or the debtor on his behalf has a right to the foreclosed property, such as property or pledge, so the property cannot be foreclosed on the debtor’s debt. Here, it is possible to claim replevins by a third party because the owner of the property is not the debtor himself, as well as to claim replevins by claiming that he has a pledge right (for example, a mortgage) on the property. Although articles 96 and 97 of the IIK only mention the right to property and pledge, it is also possible to claim replevins due to other limited fundamental rights ownership. Again, a claim for allocations can also be made based on the contract on the retention of property, which is strengthened by issuing a commentary to the title deed, the leasing agreement, the right to receivables, etc.; however, if a third party claims that the foreclosed property belongs to the debtor or another person other than him, that he holds the property as a tenant, these statements are not considered replevin claims in Article 99 of the IIK.
The Replevin Case is a case aimed at determining the validity of foreclosure by disposing of this claim on a replevin claim or removing the foreclosure on the goods by deciding that the replevin claim is in place. The purpose of the lawsuit varies depending on who filed the lawsuit. For example, a third party’s replevin claim is unfair; determining that the property belongs to the debtor and continuing the follow-up can file a replevin claim with a request. A third party claiming to be the owner may file a replevin claim demanding that the foreclosure on the property be lifted by claiming that the property belongs to them and that the property cannot be foreclosed on for someone else’s debt.
The debtor or a third party who has learned that a property has been confiscated must submit a replevin claim to the enforcement agency where the tracking is performed within 7 days to be calculated from the date of learning about the foreclosure. The executive director informs the parties about the replevin claim made and warns that if the creditor and the debtor do not declare their objections to this replevin claim within 3 days, they will be deemed to have accepted the replevin claims of the third party on the goods. If there is no objection, the confiscation of the goods is lifted, and the goods are given to a third party. If the subject of the claim is a right such as a pledge, the property is considered to be foreclosed with this right.
If the creditor or debtor files an appeal within 3 days, the executive director sends the file directly to the executive court. First of all, the court decides to postpone or continue the proceedings by its first opinion. The Replevin Case may be filed in the same court within 7 days upon the announcement or notification of this decision. As can be seen, the replevin claim and the lawsuit filed as a result are parts of a process, and both concepts differ.
2. The Court in Charge and Authorized in the Replevin Case
Executive courts handle replevins cases. The case is considered according to the simple procedure of the trial. The Replevin Case may be opened in the court of the place where the actual enforcement proceedings are conducted or in the court of the defendant’s settlement according to the general provisions contained in the HMK. However, the 17th Supreme Court. In a decision issued by the legal department, it has been decided that the Replevin Case can also be filed in the executive court of the official at the location of the foreclosed property. According to the decision; “Fortification cases related to movable property arising from foreclosure; if the foreclosure was placed at the place where the enforcement proceedings were conducted; if the foreclosure was placed by another enforcement agency on the instructions of the enforcement agency (by appeal), if the foreclosure was placed at the place where the enforcement proceedings were conducted (IIK m. 79/2) it can be opened at the place where the foreclosed goods are located or at that place if the goods have been taken to another place.”[1]
Since the exact authorization rule is not provided in the law in Replevin Case related to movable property, the authorization objection can only be put forward as the first objection. In cases where there is no strict authorization rule, the judge cannot officially make an authorization decision; he must examine the case’s merits.
3. Duration in Replevin Cases
The Replevin Case is opened within certain time limits. A lawsuit not filed during its term is dismissed in due course. The Replevin Case should be opened within 7 days from the date of the announcement or notification of the decision of the executive court on the replevin claim made within 7 days from the date of learning of the foreclosure. It is also possible to file a replevin case by a third party within 7 days from the day the foreclosure is learned. This case must be opened no later than the date the foreclosed goods are sold, and the cost is paid to the creditor. The executive courts themselves examine whether the case has been opened within the period. Below are examples from the Supreme Court decision on the subject;
“The subject matter of the lawsuit was filed in the debtor’s presence in foreclosure. The third person is the spouse of the borrower with whom he lives, and there has been no failure to reject the expiry of the case for this foreclosure by acknowledging that he learned on the same day that the foreclosure was applied to the place of work registered on his behalf.”[2]
“The plaintiff’s replevin claim, who was silent in the foreclosure made before him, when the custody record was being prepared after the 7-day right reduction period had elapsed, is not effective in the outcome.”[3]
“Confiscation 3. Suppose it was made in the absence of the person. In that case, the period for notifying the replevin claim to the enforcement directorate (IIK article 96/3) or filing a lawsuit directly in the enforcement court is 7 days from the date of learning about the foreclosure. In the concrete case, the foreclosure was applied as a subsidiary foreclosure in trustee warehouse on 25.22.2002. Subsidiary foreclosure has also been notified to the debtor, who is the director and partner of the limited liability company as 3rd person, by invitation on 4.12.2002. The debtor (director and partner of the company) reported his claim for replevins with a petition dated 9.12.2002 to the enforcement agency within 7 days on behalf of the 3rd person. For this reason, the rejection of the case in terms of duration is incorrect.”[4]
“The subject of the lawsuit was processed on the date of foreclosure on the traffic record of the vehicle; the vehicle could not be foreclosed. Plaintiff 3rd person stated on 30.07.2009 that he had just learned about the foreclosure and filed a claim for replevins with a petition to the executive directorate. There is no evidence contrary to this claim in the file, nor is it proven by the creditor that the time for filing a lawsuit has passed. Following the provision of Article 97 /a of the HRST, it is necessary to accept that the replevin claim has been made within the period.”[5]
The following determinations were made in the Supreme Court decisions on how to calculate the periods in replevin claims and Replevin Case filed by legal entities;
“In other words, the legal entity’s authority authorized to file a lawsuit must be based on the date of the foreclosure (notification) when the period of filing a claim for replevins in legal entities is started from the date when the legal entity’s representative body learns of the foreclosure. Therefore, it is necessary to accept that the date of learning about the foreclosure specified in the concrete event is the date the foreclosure was reported.”[6]
“It is necessary to investigate whether the person who was present at the time of the foreclosure and made a replevin claim on behalf of the company is authorized to represent the company. As a result of the research, if it is understood that he is one of the authorized persons, the legal period should be considered to have been terminated with the replevin claim he made during the foreclosure in favor of the company and the decision of the executive court to continue the pursuit has not been notified to the plaintiff, so the case should be examined based on accepting that this case filed before the sale is within the duration of the case.”[7]
4. The Parties of Replevin Case
As a rule, the plaintiff party is the third person who claims replevin in fortification cases. The defendant party is the creditor who has placed a confiscation. If the debtor has also objected to the replevin claim of the third party, the debtor is also shown as the defendant. In this case, the dispute occurs between the third-party claiming replevins on the goods and the creditor. As long as the replevins case continues, the sales request periods for the replevins subject to the goods will not work.
The creditor can also file the replevin case if the foreclosed property has been foreclosed on while in the hands of a third party, the executive director gives the creditor a 7-day period to file a replevin claim. This time, the case plaintiff is the creditor, and the defendant is the third person. The creditor cannot show only the debtor to the defendant. Because in this case, the third person must be shown to be an opponent. This deficiency can be completed by giving the creditor an appropriate period for the lawsuit filed by offering only the debtor to be referred to a third party.
5. Special Case Conditions in the Replevin Case
For the case to be heard in foreclosure-related replevins cases, the enforcement proceedings against the debtor must be finalized because enforcement proceedings must be completed to make a confiscation. In addition, a legally valid foreclosure process must have been made for the merits of the case to be seen.
Another condition for hearing a replevin case is a valid replevin claim in the process. Suppose the property is confiscated while the third person has them. In that case, the third person or the debtor on his behalf must make a replevin claim based on the same limited right, such as the right of ownership or pledge over the foreclosed property. Replevin claims may also be made here concerning other limited rights in kind. Some rights that have been annotated to the title deed may also be the subject of replevins. However, the replevin claim is invalid based on reasons other than rent and transfer of receivables. Again, if a third party claims that the goods belong to someone else and not to them, this cannot be considered a valid replevin claim.
The body authorized to submit a claim for replevins on behalf of a legal entity is authorized. The statements of a person who is not allowed to represent a legal entity, for example, only an employee of a company, that the confiscated property belongs to the company are not considered a valid replevin claim. In summary, the replevin claim must be put forward by the authorized person and validly.
6. The Results of the Replevin Case
In replevin cases, the executive court decides to dismiss the case if the replevin claim of a third party is found to be unfair. In this case, the confiscation placed on the property is finalized. If it is decided to postpone the follow-up, compensation is ordered against the plaintiff’s third party, not less than twenty percent of the amount subject to litigation. If it is decided that the third person is correct, if the replevin claim is based on the right of ownership, the confiscation of the property is lifted, and the property is given to the third person. If the claim for replevins is based on a limited right in kind, such as a pledge, in this case, the goods are confiscated so that there is no damage to this right. If the creditor or debtor has terrible intentions, compensation will also be provided for not less than fifteen percent of the value of the foreclosed property.
If the creditor has filed the case, if the creditor wins the case, the foreclosed property is taken from the hands of a third party, and the creditor’s receivables are covered by the price obtained by selling at the request of the creditor. If the creditor loses the case, the confiscation of the property is lifted.
Conclusion
Fortification cases are specific to enforcement law and can be filed in the follow-up processes through foreclosure or bankruptcy. It is a type of lawsuit in which the validity of the foreclosure is determined by claiming that someone else has the right to the foreclosed property due to the debtor’s debt. It is envisaged that fairly short periods, about 3 and 7 days, are provided for the submission, appeal, or the opening of the replevin claims. If these periods are missed, these operations cannot be performed again. To not suffer rights losses, it is essential to act quickly and correctly in replevin cases. For this reason, it is recommended to seek the help of a professional lawyer related to this issue.
Best regards,
Solmaz Legal and Consulting Team.
References
GUNEREN, Ali, Replevins Cases in Enforcement and Bankruptcy Law, Yetkin Publishing, Ankara, 2014, 3. Press
KURU, Baki, (2016), Enforcement and Bankruptcy Law, Legal Publishing.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/OZEKES, Muhammet (2015), Enforcement and Bankruptcy Law, Competent Publishing.
Supreme Court 17. HD., 06.12.2012, 12466-13669.
Supreme Court 17. HD., 22.09.2011, 8146-8073.
Supreme Court 21. HD., 03.07.2000, 5151-5287.
Supreme Court 21. HD., 12.05.2003, 3526-4499.
Supreme Court 17. HD., 28.09.2010, 2797-2584
The Supreme Court of Justice, 22.09.2004, 21/406-434.
Supreme Court 21. HD., 27.11.2001, 2006/19767-21323.
[1] Supreme Court 17. HD., 06.12.2012, 12466-13669.
[2] Supreme Court 17. HD., 22.09.2011, 8146-8073.
[3] Supreme Court 21. HD., 03.07.2000, 5151-5287.
[4] Supreme Court 21. HD., 12.05.2003, 3526-4499.
[5] Supreme Court 17. HD., 28.09.2010, 2797-2584
[6] The Supreme Court of Justice, 22.09.2004, 21/406-434.
[7] Supreme Court 21. HD., 27.11.2001, 2006/19767-21323.
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