Negative Declaratory and Discharge Action: Application of İİK m.72

The negative declaratory action may be brought before, during or after enforcement proceedings (İİK m.72/1-2). If filed BEFORE enforcement starts, the court may stay the proceedings by interim measure against security of not less than 15 per cent of the claim (İİK art.72/2). If filed AFTER enforcement has started, the proceedings cannot be stayed by interim measure at all; against security at the same rate the debtor may only ask that the money held by the enforcement office not be paid out to the creditor (İİK art.72/3).

The burden of proof follows the general rules and the basis of the claim. The creditor must prove that the debt arose; the debtor must prove the defences relied on (payment, release, limitation, invalidity of the deed, etc.).

If the action succeeds and the pursuit is found wrongful and in bad faith, bad-faith damages of not less than 20 % of the claim are awarded to the debtor (İİK m.72/5). Conversely, if the action fails, the creditor recovers damages from the security — not less than 20 % — for the delay in obtaining payment (İİK m.72/4).

If payment is made because of enforcement while the negative declaratory action is pending, it continues as restitution. Where payment predates the action, there is no pending claim to convert; the appropriate restitution or other recovery action must be brought from the outset. The one-year period under m.72/7 and the basis of payment must be assessed.

Under İİK m.72/7, a debtor who did not object to the enforcement or whose objection was removed and who has been compelled to pay an amount not owed may, within one year of payment, bring a restitution action in the ordinary courts. This one-year period is a forfeiture period.

Where the dispute is of a commercial nature, TTK m.5/A makes an application to a mediator before filing suit a procedural precondition in negative declaratory and restitution actions as well. Article 5/A was introduced by Law No. 7155 and has been in force since 1 January 2019; Law No. 7445 extended its scope to negative declaratory and restitution actions with effect from 1 September 2023.

In enforcement and bankruptcy proceedings, the choice of enforcement track must be determined by the basis of the claim and the available documents. Although ordinary enforcement, commercial-paper enforcement, judgment-based enforcement, preliminary attachment, composition with creditors and bankruptcy may pursue the same outcome, they differ in time limits, available objections and costs.

Dates of service, objection or payment deadlines, attachment requests, sale-request periods and complaint deadlines are the most critical stages of the file. For this reason the dates of service of the payment order, enforcement order, attachment record, valuation report and sale notice should be tracked in a separate schedule.

For the creditor, interest calculation, the clarity of the enforcement request and the inquiry into the debtor's assets are decisive; for the debtor, grounds of objection, claims of exempt assets and the possibility of a negative declaratory action must be assessed from the outset. Otherwise, a procedural oversight may eclipse a meritorious position.