Enforcement Defence and Negative Declaratory Actions in Türkiye

Lex Lata acts for companies and individuals named as debtors in Turkish enforcement files: foreign suppliers pursued on a disputed invoice, purchasers whose cheque was presented after the underlying contract collapsed, guarantors, and former shareholders pursued on obligations they say were discharged. Because the same office also acts for creditors in commercial debt collection and asset recovery, every enquiry is run through a conflict-of-interest check against our existing files before any advice is given; where a conflict exists we say so and take no instructions in the matter.

• Partial objections must be quantified. A debtor objecting to only part of the debt must clearly state which part and how much. If he does not, the article provides that the objection is deemed not to have been made at all: not reduced, but treated as absent.
• A signature must be denied expressly. If the proceedings rest on a deed and the debtor does not separately and expressly deny the signature in the objection, he is deemed to have accepted it for the purposes of the file (İİK Arts. 60 and 62).
• A domestic address is compulsory. The objecting debtor or his attorney must give an address in Türkiye. If the address later changes without notice and the process server cannot find a new one, service on the address in the creditor’s enforcement request counts as service on the debtor.

A further constraint follows at the hearing stage: under İİK Art. 63 the objecting debtor cannot change or extend the grounds of his objection beyond what appears from the text of the deed the creditor relies on. Grounds stated carelessly in week one are difficult to repair later.

A venue objection is not a separate application: İİK Art. 50 requires it to be raised together with the substantive objection, and the enforcement court decides venue first and finally. The same article makes the enforcement office of the place where the underlying contract was concluded competent, in addition to the venues produced by the general rules of civil procedure applied by analogy. Which assets of a public-law debtor lie outside enforcement altogether is a separate question, governed by the specific statutes that place certain public property beyond attachment.

• Removal of objection (İİK Art. 68). Available within six months of service of the objection, before the enforcement court, and only where the claim rests on an acknowledgment of debt whose signature is admitted or notarially certified, or on a receipt or document issued by an official authority within its competence. If the creditor lets the six months pass, no fresh ordinary enforcement may be brought on the same claim. The court removes the objection where the debtor produces no document supporting it, and rejects the request where the objection itself rests on a document of the same statutory quality.
• Provisional removal (İİK Art. 68/a) and the release action (İİK Art. 69). Where the instrument is a private deed and the signature was denied, the creditor may seek provisional removal within six months. If it is granted, the debtor has seven days to bring an action to be released from the debt, and that action is heard only if 15 per cent of the claim is deposited with the court in cash, or in securities of equivalent value or a bank letter of guarantee accepted by the court, by the first hearing.
• Annulment of objection (İİK Art. 67). Available within one year of service of the objection, before the general courts, proving the claim under ordinary rules of evidence. Missing that year ends the enforcement file but not the claim: the article expressly preserves the creditor’s right to sue under general provisions.

In these routes the indemnity is not less than 20 per cent, and under Arts. 67, 68 and 68/a it is awarded on the other side’s application; the conditions differ, however: in removal of objection the request must be granted or rejected on the merits (Art. 68), on provisional removal the debtor pays if the request is granted and the creditor if it is rejected, and in the release action the party found to be in the wrong pays (Arts. 68/a, 69). Under İİK Art. 67 that liability falls on the debtor whose objection was unjustified and on the creditor whose proceedings were unjust and in bad faith; where a parent, guardian or heir objected, liability against the debtor requires proof of bad faith.

• Filed before enforcement. The court may, on application, grant an injunction staying the enforcement proceedings against security of not less than 15 per cent of the claim (Art. 72/2). That injunction is governed by the general regime of the Code of Civil Procedure No. 6100 (HMK): the applicant must show, under HMK Art. 389, that a change in the existing situation would make the right significantly harder or impossible to obtain, or that delay would cause serious harm, and must prove his case prima facie under HMK Art. 390(3). Two deadlines then bind the applicant: implementation must be requested within one week of the decision (HMK Art. 393), and where the injunction was obtained before the action, the action must be filed within two weeks of that request (HMK Art. 397), failing which the injunction lapses of itself.
• Filed after enforcement has begun. Art. 72(3) forecloses a stay by injunction. What remains is an injunction restraining release of the money held in the enforcement treasury to the creditor, again against security of at least 15 per cent, covering damage caused by delay.
• The exposure runs both ways. If the action ends in the creditor’s favour, his damage from late receipt is taken out of that security and, under Art. 72(4), cannot be assessed at less than 20 per cent. If it ends in the debtor’s favour, enforcement stops at once and, on finality, is restored to its former state without a further judgment.
• Where the money has already gone. A debtor who obtained no injunction and paid is not without remedy: the action continues as a recovery action (istirdat), and a person who did not object, or whose objection was removed, and was compelled to pay in full money he did not owe may sue for its return within one year of payment (Art. 72/7). In a recovery action the plaintiff need only prove that the money was not payable. Both actions may be brought where the enforcement office sits or at the defendant’s domicile.

Procedural irregularities by the office itself are challenged by complaint to the enforcement court under İİK Art. 16, within seven days of learning of the act, with the exception, stated in the same article, that a failure to perform a right or an unjustified delay may be complained of at any time. The creditor also faces time limits that a defence should monitor rather than assume: the right to request attachment lapses one year after service of the order to pay, although periods spent on an objection or an action are not counted (Art. 78), and sale of attached property must be requested within one year of the attachment, with valuation and sale costs paid in advance or the request is treated as not made (Art. 106).

The same procedure is set out step by step, including what a bare objection does and does not achieve, in our note on receiving a payment order from a Turkish enforcement office. Where the dispute is contractual rather than procedural, the merits belong in commercial litigation and arbitration; where seized goods belong to someone other than the debtor, see third-party rights and retention of title; and where the creditor’s title is a foreign judgment or award, the prior question is recognition and enforcement.

Statutory references are to Enforcement and Bankruptcy Law No. 2004 and the Code of Civil Procedure No. 6100, as published at mevzuat.gov.tr and linked above. The percentages above are statutory minimums; what is awarded in a given file rests with the court.