The person who is faced with the risk of seizure and sale of her/his goods, although she/he is not in debt, pays the money subject to the executive proceeding in order to eliminate this risk. There are different options for the person who wants to get back the money paid unfairly. In our article named “Can the Money Paid Due to Unfair Executive Proceedings Be Recovered?”, we talked about the procedure for the return of execution. Execution restitution is possible without the need to file a case if the court decision regarding the pecuniary claim is reversed in favour of the debtor party at the legal remedy applied for and this decision is finalised. In this bulletin, we have explained the replevin lawsuit, which is the case that needs to be filed in order to recover the money paid under the threat of execution even though it is not owed.
1. What is the Replevin Case?
The person whose execution proceedings have been finalized may have had to make a payment to the creditor, although he/she is not actually a debtor, in order to avoid the danger of the seizure and sale of her/his goods during the compulsory execution. The person who has made the payment for no reason must file a timely replevin case against the creditor in order to get this money back. In the replevin case, the plaintiff requests the refund of the money paid and if his claim is right, the court decides to return that amount.
The debtor of the executive proceeding files the replevin case against the creditor to whom she/he made the payment. The debtor in question may be the principal debtor or the guarantor.
2. In What Circumstances and Conditions Can an Replevin Case Be Filed?
If the debtor has not objected to the executive proceeding or if the objection has been revoked by the enforcement court upon the request of the creditor, the person who has to pay the money that she/he is not indebted can file a replevin case. The important point here is that the debtor paid the money under the threat of execution. For example, if the debtor has made a payment to the creditor before the payment order is finalized, in this case, she/he cannot demand the restitution of the money she/he has paid by a replevin case. When there is no threat of compulsory execution, the person who wants to recover the payments made to the creditor because the person mistakenly thinks that she/he is a debtor shall file an unjust enrichment case instead of a replevin case according to the Code of Obligations (CO. Articles 78-82). To summarize, after the payment order of the debtor of the proceeding is finalised, a replevin case can be filed for the recovery of the money paid to the creditor due to execution.
The replevin case will not be filed if the creditor files an action for annulment of the objection in order to nullify the debtor’s objection to the payment order and gets a judgment in this action. Because, the judgment taken given to the creditor in the action for annulment of the objection shall constitute a final judgment in pecuniary terms for the creditor and debtor parties regarding the same debt. However, if the creditor has applied to the procedure for the rescission of the objection in the enforcement courts, not the action for the annulment of the objection, there is no obstacle for the debtor to file a lawsuit for recovery.
The issues described above are specific to executive proceedings without judgement. Is it possible to recover the money paid in the executive proceedings with judgement regarding the pecuniary claims based on the court decision by a replevin case? The answer to this question, as a rule, will be no. The receivable paid in an execution with judgement is based on a court decision. However, in the event that double payments have been made under the threat of compulsory execution because of the re-executive proceedings although the payment is made to the creditor after the date of issue of the writ, a replevin case can be filed.
If the debtor of the proceeding has paid the past due debt without raising a statute of limitations, then she cannot demand the money she paid back by a replevin case. Because the past due debt is not actually money that is not a loan, it is only incomplete debt. For this reason, the payment made regarding the past due debt is a valid debt payment and cannot be requested back with a replevin case.
3. When Should the Replevin Case Be Filed?
The replevin case must be filed within 1 year from the date of payment. The date of payment is the date on which the money was deposited. The time when payments are made to the creditor’s account from the account of the enforcement agency is not taken into account..
The final term is 1 year, and the case must be filed within this period in order to be heard and decided by the court. The lawsuit filed after the 1-year period has dismissed on procedural grounds, and the court will not prosecute as to the accusations. The court may take into account that the case has not been filed in due time, and the parties may demand the dismissal of the action at any time.
The debtor who misses the 1-year period may seek his/her right by filing a lawsuit for unjust enrichment within the 2-year period.
The decision of the Supreme Court Assembly of Civil Chambers dated 28.03.2007 and numbered 2007/3-188 E., 2007/172 K. implies that “The replevin case shall be filed within a 1-year period of the final term from the date on which the non-debt money is fully paid. Therefore, the 1-year period for filing a replevin case begins on the date the debtor pays this money directly to the creditor or the enforcement office, or when the debtor’s confiscated goods are sold and the price is paid to the enforcement office. In addition, in accordance with Article 72/7 of the Enforcement and Bankruptcy Law, the replevin case must be filed within 1 year from the date of payment of the debt.
In the present case, based on the General Credit Agreement signed by the defendant cooperative as a joint debtor guarantor against the plaintiffs’ de cujus …, Together with the principal debtor and the other guarantor, enforcement proceedings without judgment are initiated by the file numbered ….. of the Çumra Enforcement Office, and upon the finalization of the proceedings, some real estates of the plaintiffs’ de cujus are confiscated and sold by tender offer, and considering that the payment has been made regarding the enforcement file on 23.12.2013, although the 1-year period of the final term has not expired as of the date of the case, while the merits of the case should have been examined, the dismissal of the case on procedural grounds is not appropriate on the grounds that the final term had expired due to an erroneous assessment, and the decision has to be reversed.”
4. The Competent Court in the Replevin Case
The competent court in replevin cases is determined according to the subject matter of the case. If the receivable at issue does not fall into the jurisdiction of another and special court, the court in charge of the replevin case will be the Civil Courts of First Instance. However, if the subject of the main case concerns, for example, consumer law, labour law or commercial law, these courts will also be responsible for the replevin case.
The competent court 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 an case in the one of these competent courts.
5. The Burden of Proof in the Replevin Case
The burden of proof in the replevin case varies depending on whether the receivable is based on a document or not. According to the Supreme Court, the burden of proof is on the litigious creditor in the replevin cases filed for the recovery of the payments made due to the payment order that has become final due to the lack of objection in the proceedings through general attachment which is not based on any documents. If the defendant creditor proves a pecuniary claim of the proceeding, this time the debtor has to prove that this money should not be paid.
The debtor, who files a replevin case with the claim that the certified debt of the proceeding does not exist, has to prove the said claim.
6. The Results of the Replevin Case
If the litigious debtor of the proceeding wins the replevin case, the court decides to return the money paid, and that the expenses of the proceedings and litigation be covered by the defendant’s creditor. The litigious debtor can follow up on the decision he has obtained without waiting for it to become finalized. Because there is no need to wait for the performance of the writs regarding finalization of the pecuniary claims.
If the litigious creditor wins the replevin case, the litigious debtor cannot get back her/his money and has to pay the court expenses.
7. The situation in which Negative Declaratory Action Turns into Replevin Case
Before the debt of the proceeding is paid, the debtor may have filed a negative declaratory action against the creditor. If the execution proceeding has progressed and the debtor has made a payment to the creditor before this case is concluded, the case will turn into a replevin case. If the debt at issue of the negative declaratory action is fully paid to the creditor,, the lawsuit turns into a full replevin case. In case of partial payment, while the paid part may still transform a replevin case, the negative declaratory action for the unpaid part continues as it is. The plaintiff does not need to demand the court to continue the case as a replevin case. The court, which finds out that the debt of the proceeding has been transferred to the creditor’s bank account while the trial is still in progress, should automatically convert the negative declaratory action into a replevin case for the paid part.
Since the negative declaratory action will automatically turn into a replevin case, it is not possible for the debtor to file a separate replevin case against the creditor. In this case, this case should be rejected due to lack of legal interest.
“If the debtor has paid the debt at issue to the creditor on grounds that no interlocutory injunction in the negative declaratory action filed by the debtor pursuant to the 72/5 provision of the EBL is taken, or if the interlocutory injunction given has been revoked for any reason, the negative declaratory action will be converted to a replevin case.
In this case, there is no need for the debtor to demand to convert the negative declaratory action into a replevin case and to continue in this way. The court, which finds out that the debt has been paid, must continue automatically the case as a replevin case, in accordance with the above-written law provision.
It is possible for the person who made the payment to the creditor even though he is not indebted during the enforcement proceedings, to get back the money he paid, by filing and winning a replevin case, and eventually putting the court’s decision in the execution proceeding with judgement Professional legal support is recommended for successful and fast results in litigation and proceeding processes.
Solmaz Law and Consultancy Team.
Timuçin Muşul, (2016), İcra ve İflas Hukukunda Menfi Tespit ve İstirdat Davaları, Adalet Yayınevi.
Talih Uyar/Alper Uyar/Cüneyt Uyar, (2015), Olumsuz (Menfi) Tespit ve Geri Alma (İstirdat) Davaları, Bilge Yayıncılık.
15th Civil Chamber of the Supreme Court, 2021/897 E., 2021/2409 K.
SCACC, 2018/55 E., 2020/130 K.
15th Civil Chamber of the Supreme Court, 2021/897 E., 2021/2409 K.
SCACC, 2018/55 E., 2020/130 K.