Debt Release Action in Enforcement and Bankruptcy Law

A debt relief lawsuit is a special legal remedy granted to the debtor against a decision to provisionally lift an objection , as regulated in Article 69 of the Enforcement and Bankruptcy Law No. 2004. This lawsuit is a negative declaratory action specific to enforcement law, aiming to establish that the debtor is not actually indebted . The legislator, recognizing that the provisional lifting decision of the enforcement court does not constitute a final judgment in a substantive sense, has granted the debtor the opportunity to have the dispute examined on its merits in a general court.

A debt relief lawsuit can only be filed under certain conditions. Firstly, the creditor must have initiated enforcement proceedings without a court order based on a simple promissory note. Secondly, the debtor must have objected to the signature on the payment order within the prescribed time limit , and subsequently, upon the creditor's application, the enforcement court must have decided to temporarily lift the objection . Only after this decision is the debtor granted the right to file a debt relief lawsuit in a general court.

According to Article 69 of the Enforcement and Bankruptcy Law, the debtor must file a lawsuit within seven days of the pronouncement or notification of the decision to provisionally lift the objection. This period is a forfeiture period . If this period is exceeded, a lawsuit to relieve the debt cannot be filed; the decision to provisionally lift the objection becomes final, and any provisional attachment may be converted into a permanent attachment. Furthermore, for the lawsuit to proceed, the debtor must provide security in the amount stipulated by law. This security is a prerequisite for the lawsuit, and failure to deposit it within the specified time will result in the lawsuit being dismissed on procedural grounds.

The court with jurisdiction in debt relief cases is the general court. In terms of authority, the case in the court where the enforcement proceedings were initiated or in the court of the creditor's place of residence . Unlike enforcement courts, the court examines the dispute on its merits, not just based on documents, but by considering all available evidence. Thus, the parties can resort to witness testimony, expert opinions, sworn statements, and other means of proof.

If the debt relief action is accepted, the court rules that the debtor is not liable for the debt in question. In this case, the summary enforcement proceedings cannot continue, and any provisional attachment is lifted. Conversely, if the action is dismissed, the decision to lift the provisional objection becomes final, and the creditor can continue the proceedings through definitive attachment. Furthermore, the compensation provisions stipulated in the Enforcement and Bankruptcy Law may be applied to the losing party.

While there is a close relationship between a debt relief lawsuit and a negative declaratory judgment lawsuit, the two lawsuits are not the same. A negative declaratory judgment lawsuit can generally be filed before or during enforcement proceedings, whereas a debt relief lawsuit can only after a decision to provisionally lift an objection, under the special conditions stipulated in Article 69 of the Enforcement and Bankruptcy Law. Therefore, in legal doctrine, a debt relief lawsuit a special negative declaratory judgment lawsuit specific to enforcement law .

In conclusion, a debt relief lawsuit is an important legal safeguard that a debtor can pursue in an enforcement proceeding without a court judgment, initiated by the creditor based on a promissory note, after the debtor's objection to the signature is temporarily lifted. Through this lawsuit, the debtor can ensure that the dispute is examined in all its aspects in a general court, instead of the limited review of the enforcement court. Thus, the aim is to strike a balance between both the creditor's right to pursue the claim and the debtor's right to defend themselves in terms of substantive law.

19th Civil Chamber, Case No. 2017/1051 E., Decision No. 2017/8062 K.

"Case Law Text"

COURT: Commercial Court

Dismissal of the main objection between the parties case, Merged… 2nd Commercial Court of First Instance, case no. 2009/94 from debt escape case and combined… 3rd Civil Court of Peace’s no. 2009/595 from debt escape Following the retrial conducted in accordance with the reversal decision regarding the cases, and based on the written reasons, the judgment rendered partially accepting the main case and rejecting the consolidated cases was appealed within the prescribed time by the plaintiff's attorney and the defendant's attorney, who is the assignee creditor of the enforcement files. The file was examined, and the necessary discussions and considerations were made.

- DECISION -

The main case is the annulment of the objection, and the consolidated cases are.. from debt escape is the case.
According to the evidence gathered by the court and the expert report adopted, the decision of the 3rd Civil Court of Peace regarding the acceptance of the defendant's request for set-off and the rejection of the main case, the partial acceptance of the consolidated case numbered 2009/94, and the rejection of the consolidated case numbered 2009/595 was appealed by the plaintiff's attorney, the defendants' attorneys, and the attorney of the defendant assignee, and our Chamber's decision numbered 2013/9841 E. – 2013/18147 K. dated 18.11.2013; “Consolidated cases from debt escape case The court ruled to overturn the judgment on the grounds that the lawsuit was not filed within the 7-day period stipulated in Article 69/2 of the Enforcement and Bankruptcy Law. Accordingly, while the consolidated lawsuits retained their independence, a judgment should have been rendered in accordance with Article 69/3 of the same Law, but this aspect was not considered, and the judgment was rendered in writing without such consideration. The court's task should be to collect and evaluate all evidence within the framework of the claims and defenses in the main lawsuit and to render a decision in accordance with the appropriate outcome.
Following the retrial conducted in accordance with the reversal order, the court decided to dismiss the consolidated cases numbered 2009/595 of the 3rd Civil Court of Peace and 2009/94 of the 2nd Commercial Court of First Instance in Antalya, and to partially accept the main case. The judgment was appealed by the plaintiff's attorney and the defendant assignee creditor.
The main case is the annulment of the objection case The defendants in the main case have requested a set-off. With this request, the defendants acknowledged the plaintiff's claim as of the enforcement date and stated that their counterclaims should be deducted from the plaintiff's claim.
In this case, the court should have determined any receivables of the defendants as of the date the plaintiff bank initiated the enforcement proceedings, based on an expert report, and then made a decision based on the appropriate outcome reached after offsetting these receivables against the plaintiff's claim. However, the decision was rendered in writing with insufficient examination, which is incorrect.
CONCLUSION: For the reasons explained above, it was unanimously decided on December 19, 2017, that the judgment be REVERSED in favor of the parties, that the other appeals of the parties be not examined at this time in accordance with the grounds for reversal, and that the advance fees be refunded upon request.