Debt Release Action in Turkish Enforcement Law: How a Debtor Can Challenge the Debt

Under Turkish enforcement law, a debtor who believes that he or she does not actually owe the amount claimed is not limited to objecting to the payment order at the enforcement office. In some situations, the debtor may also file a “debt release action” (borçtan kurtulma davası) before the civil courts. This is a special form of negative declaratory action, designed to give the debtor a full judicial review of the alleged debt once enforcement has progressed beyond the initial objection stage.

This remedy is particularly relevant for foreign individuals or companies who find themselves facing enforcement in Turkey based on promissory notes, cheques or other written instruments, and whose initial objection at the enforcement office has been provisionally removed by the Enforcement Court.

1. Legal Background and When the Remedy Arises

The debt release action arises mainly under the framework of the Turkish Enforcement and Bankruptcy Law. In a typical sequence:

1. A creditor starts enforcement without judgment (ordinary or negotiable-instrument-based) against the debtor.
2. The debtor files an objection to the payment order at the enforcement office, which stops the enforcement.
3. The creditor then applies to the Enforcement Court for removal of the objection, often relying on strong written documents such as notarial deeds or negotiable instruments.
4. The Enforcement Court may grant a decision of provisional removal of the objection (itirazın geçici kaldırılması).

Once this provisional removal decision has been served on the debtor, the debtor is faced with a real risk that enforcement will continue to attachment and sale of assets. At this stage, the debtor can protect his or her position by filing a debt release action within a very short time limit.

2. Strict Time Limit: Seven Days From Service

The most critical condition is the deadline. The debtor must file the debt release action within seven days from the date on which the decision of provisional removal of objection is notified (served) on the debtor.

This seven-day period is a preclusive period. If the debtor does not bring the action in time, the provisional removal decision becomes effectively final, and the creditor may proceed with enforcement, including obtaining final attachment over the debtor’s assets.

Because the time limit is extremely short and is not suspended by appeal against the provisional removal decision, a debtor – especially a foreign debtor – must react immediately upon receiving this notification and consult a Turkish lawyer without delay.

3. Competent Court and Place of Filing

The debt release action is brought before the general civil court (or commercial court, if the underlying relationship is commercial). The law gives the debtor a choice between two venues:

– The court in the district where the enforcement is being conducted, or
– The court of the creditor’s domicile in Turkey.

For foreign debtors, it is generally more practical to file where the enforcement file is pending, because that court is already familiar with the context of the case and the parties.

4. Security Deposit Requirement (15% of the Claim)

Another key condition for the admissibility of the debt release action is the obligation to provide security.

The debtor must deposit 15% of the claim amount (principal) as security no later than the first hearing day, either in cash to the court cashier or by providing an acceptable bank guarantee or equivalent securities.

If this security is not duly provided by the first hearing, the court must dismiss the action. There is no second grace period. This requirement is intended to prevent abusive use of the remedy and to protect the creditor against frivolous litigation.

5. Nature of the Lawsuit and Evidence

Substantively, a debt release action is a negative declaratory lawsuit: the debtor asks the court to declare that the alleged debt does not exist, is smaller than claimed, or is already discharged, for example by payment, set-off or prescription.

Unlike the summary procedure before the Enforcement Court, the debt release action is heard under the ordinary rules of civil procedure. This means that the court may examine all kinds of admissible evidence: contracts, correspondence, invoices, accounting records, expert reports, and witness testimony.

The creditor bears the initial burden of proof to establish the existence and basis of the claim; thereafter, the debtor must substantiate any defence such as payment, limitation, or lack of underlying cause. This broader evidentiary framework is particularly important in complex commercial or long-term business relationships where documents alone do not tell the full story.

6. Effects on the Enforcement Proceedings

If the debt release action is filed in time and the 15% security is provided, the enforcement proceedings remain stayed. The provisional removal of objection does not turn into final removal during the pendency of the lawsuit. Any provisional attachment imposed on the debtor’s assets does not automatically become final; the enforcement effectively waits for the outcome of the case.

If the court ultimately accepts the debt release action and finds that the debtor is not liable, or only partially liable, the enforcement file is terminated or narrowed accordingly, and attachments are lifted to the extent of the court’s finding. If the court rejects the action, the creditor may proceed with final attachment and sale, and the debtor may be ordered to pay litigation costs and possibly compensation.

7. Relationship With Other Remedies

The debt release action is closely related to the general negative declaratory action and to the restitution (istirdat) action used when a debtor has already paid under the pressure of enforcement and seeks to recover the money within one year.

In essence, the debt release action is a special form of negative declaratory action tied to the provisional removal of objection and subject to a seven-day deadline plus the 15% security requirement. If these specific conditions are not met, the debtor may still have recourse to an ordinary negative declaratory or restitution action, but such actions will not automatically suspend the ongoing enforcement.

For foreign debtors, understanding these distinctions and acting within the strict time limits is crucial to effectively protecting their rights in the Turkish enforcement system.