Objection to a Debt, Negative Declaratory Judgment and Recovery of Payment

Actions for a Negative Declaratory Judgment and Recovery of Payment Brought by the Debtor

This practice area covers not only the claims of creditors but also the legal remedies of persons who allege that, although they are not debtors or the debt has ended, enforcement proceedings or a payment demand have been directed at them.

• The allegation that the debt never arose
• The defense that the debt has been paid, set off or released
• Objection to the signature, the authority to represent or the content of the instrument
• The allegation of lack of consideration, simulation or invalidity
• The defense of the statute of limitations
• An action for a negative declaratory judgment before or during the enforcement proceedings
• Requests for interim legal protection aimed at stopping the enforcement proceedings
• An action for recovery of payment concerning money paid under the threat of coercion or because of the enforcement proceedings
• Compensation claims, if the conditions are met, for wrongful enforcement proceedings
• Allegations of duplicate enforcement proceedings or collection for the same debt

An Action for a Negative Declaratory Judgment Does Not Automatically Stop the Enforcement Proceedings

Under İİK Art. 72, the protection that can be requested before and after the start of enforcement proceedings differs. The general rule is that, once the proceedings have started, they cannot be stopped by an interim injunction in a negative declaratory action; if the conditions and security are in place, it can be requested that the money held at the enforcement office’s cashier not be paid out to the creditor. Filing the action does not on its own provide protection.

If enforcement proceedings are started while mediation is under way

Law No. 6325 Art. 18/A/16 contains a special provision: whether enforcement proceedings were brought against the applicant in the same dispute after the application to the mediation office, an action for a negative declaratory judgment within two weeks from the final minutes, and the conditions of the claim are examined together. This exception cannot be generalized to every action brought after the start of enforcement proceedings.

Recovery of money already paid

Under the conditions in İİK Art. 72, where money not owed was paid because of the enforcement proceedings, the one-year period for recovery from the date of payment comes into play. The effect of a payment made while an action for a negative declaratory judgment is pending is assessed separately. Not every refund of a payment rests on the same legal ground or is subject to the same period.

When a payment order arrives

Keep the whole payment order, the service record and the supporting documents. The authority to apply to and the time limit vary according to the type of proceedings; ordinary enforcement without a judgment, enforcement on negotiable instruments and enforcement with a judgment are not the same. Sending a message to the firm does not replace the application that must be made in the enforcement file.