Replevin Action and Its Conditions

The debtor, against whom an enforcement proceeding was conducted without notice, may believe that they are not indebted despite the enforcement proceeding being finalized due to their failure to object to the payment order or their objection being dismissed by the enforcement court. If the debtor has not filed a negative declaration lawsuit and has paid the debt under the threat of compulsory execution, they can file a replevin (recovery) lawsuit against the creditor to reclaim the money they have paid. [1]

A replevin lawsuit is a lawsuit filed to recover money that is claimed to have been unjustly obtained as a result of the threat of compulsory execution, aiming to retrieve it from the creditor. The purpose of a replevin lawsuit is to cancel the unlawful outcome of a concluded enforcement proceeding and to achieve compliance between substantive law and procedural rules of enforcement law. [2] Our article consists of details regarding the replevin lawsuit.

1. CONDITIONS of REPLEVIN ACTION

Conditions are outlined in Article 72/VI-VIII of the Enforcement and Bankruptcy Law No. 2004. The relevant paragraphs are as follows:

"If the debtor has not obtained a precautionary measure decision in the form of a negative declaration lawsuit and the debt has been paid, the lawsuit shall proceed as a replevin lawsuit.”

“A person who is compelled to fully pay a sum of money that they are not obligated to pay due to not objecting to the enforcement or having their objection dismissed may apply to the court within one year from the date of payment, according to general provisions, to request the recovery of the money.”

“Negative declaration and replevin lawsuits can be filed either at the enforcement office where the enforcement is conducted or at the defendant's place of residence. In a replevin lawsuit, the plaintiff is obligated to prove that it is not only necessary to return the money."

According to the mentioned article, the necessary conditions for filing a replevin lawsuit are as follows:

a. The money for which replevin is requested must have been paid during the enforcement proceedings

The plaintiff in a replevin lawsuit may have paid the money to the enforcement office on behalf of the debtor or a third party, or the debtor's assets may have been seized and sold to collect the money. [3]

In order to file a replevin lawsuit, it is sufficient for the money to have been paid to the enforcement office or to the creditor or their representative externally. If the payment was made to the enforcement office, it is enough for the money to have entered the enforcement office, and it is not necessary for it to have been paid to the creditor.

b. It is necessary for the debt to be paid under the threat of compulsory execution.

The payment made to the enforcement office must be a result of the debtor either not objecting to the payment order or their objection being definitively dismissed, leading to the finalization of the enforcement proceedings, and the debtor being compelled to make the payment under the threat of compulsory execution, either in cash or through the seizure and sale of their assets.

The Court of Cassation has stated that a debtor who accepts the debt and makes a payment within the objection period in the general attachment procedure cannot subsequently file a replevin lawsuit. [4]

If the enforcement proceeding against the debtor has been finalized and is based on a court judgment, generally, a replevin lawsuit cannot be filed regarding the money paid as a result of this finalized proceeding. This is because the payment made by the debtor, while having the right to object, is not considered a payment made under the threat of compulsory execution.

c. The debtor must have paid a debt for which they are not the actual responsible party

For example, in a case where enforcement proceedings have been conducted against the debtor and have been finalized, it may be discovered that the debtor had actually already paid their debt to the creditor, the contract giving rise to the debt has been terminated, the contract is invalid due to mistake, deception, or fear, or the basis of the enforcement proceedings is a guarantee bond, etc. [5]

d. The money in question must be capable of being recovered under substantive law

According to Article 81 of the Turkish Civil Code, something given with the intention of causing an unlawful or immoral consequence cannot be reclaimed. For example, replevin lawsuits cannot be filed for debts arising from gambling, betting, or lottery and gambling winnings unless authorized by competent authorities.

2. THE STATUTE of LIMITATIONS for FILING a REPLEVIN LAWSUIT

According to Article 72/7 of the Enforcement and Bankruptcy Law, if the debtor, due to not objecting to the enforcement or having their objection definitively dismissed, is compelled to fully pay a sum of money that they are not obligated to pay, they may file a lawsuit within one year from the date of payment to request the recovery of the money. The one-year period for filing a lawsuit is not a statute of limitations but a time-bar for the exercise of rights. As it is a time-bar, the period for filing a lawsuit is observed by the court ex officio. [6]

If the dispute involves a debt that has been paid in installments, a lawsuit must be filed within one year from the payment of the final installment. [7]

If the debtor exceeds the one-year period for filing a lawsuit as stated in this law article, they can file an unjust enrichment lawsuit.

3. RIGHT to SUE and BURDEN of PROOF

The replevin lawsuit is filed by the debtor, who is the subject of the concluded enforcement proceedings, against the creditor. Even if the debt subject to enforcement has been paid by a third party, the capacity to sue belongs to the debtor. [8]

The replevin lawsuit can be filed in two ways. Firstly, during a pending negative declaration lawsuit, if the debt subject to enforcement is paid by the debtor under the threat of compulsory execution, the court must continue the proceedings as a replevin lawsuit. In other words, the negative declaration lawsuit transforms into a replevin lawsuit upon the payment of the debt subject to enforcement. Secondly, if the debtor does not object to the enforcement proceedings, does not file a negative declaration lawsuit, and pays the debt subject to enforcement, they can file a replevin lawsuit.

In a replevin lawsuit, the burden of proof generally falls on the debtor, who is the plaintiff. This burden of proof is explicitly stated in Article 72/8 of the Enforcement and Bankruptcy Law:

"The plaintiff is obligated to prove that it is unnecessary to return only the money in the replevin lawsuit."

In this case, the plaintiff will need to prove that they do not owe the debt, that the debt is invalid, or that the debt has been terminated. The creditor is not obligated to prove the existence of their claim.

4. JURISDICTION and COMPETENT COURT

In terms of jurisdiction:

Replevin lawsuits are filed according to the general jurisdiction rules specified in the law, based on the nature of the legal dispute between the parties. Depending on the nature of the dispute, a replevin lawsuit can be filed in Commercial Courts of First Instance, Civil Peace Courts, Consumer Courts, and other relevant courts. Jurisdiction is a matter of public order and is considered ex officio.

In terms of competence:

A replevin lawsuit can be filed at the location where the enforcement office conducting the enforcement proceedings is located. Additionally, it can be filed at the court of the domicile of the creditor-defendant. If there are multiple creditor-defendants, it can also be filed at the court of the domicile of any one of them. (Code of Civil Procedure, Article 7/1) Here, there is a rule of optional jurisdiction, allowing the plaintiff to choose from different competent courts.

5. CONCLUSION

In conclusion, the purpose of a replevin lawsuit is to enable the debtor to reclaim a payment made under the compulsion of enforcement, either due to the absence of objection to the payment order or the removal of the objection, despite not actually being a debtor. Since there are no specific procedural rules for replevin lawsuits, general provisions apply.

The judgment obtained as a result of a replevin lawsuit can be enforced before it becomes final since it relates to a monetary claim. However, judgments resulting from the conversion of a negative declaratory action to a replevin lawsuit cannot be enforced until they become final. [9] The same rule applies to attachments included in the judgment. [10]

Leyla Sarı

Bibliography:

1. Kuru, Baki. Enforcement and Bankruptcy Law Written According to the Appellate System. Istanbul: Legal Yayıncılık, 2016.
2. Kuru, Baki. Enforcement and Bankruptcy Law. Ankara: Adalet Yayınevi, 2013.
3. Supreme Court 19th Civil Chamber. 2004/8007 E. 2005/2495 K. 10.03.2005.
4. Legal Assembly 19-56/118 03.03.2004.
5. Kuru, Baki. Enforcement and Bankruptcy Law. Ankara: Adalet Yayınevi, 2013.
6. Supreme Court 19th Civil Chamber. 2015/19402 E. 2015/7665 K. 25.05.2015.
7. Supreme Court 19th Civil Chamber 7512/4298 30.04.1997.
8. Kuru, Baki. Enforcement and Bankruptcy Law. Ankara: Adalet Yayınevi, 2013.
9. Legal Assembly 2018/8-55 E., 2020/130 K. 11.02.2020.
10. Supreme Court 12th Civil Chamber 2007/22781 E. 2007/681 K. 21.01.2008.