In short
A negative declaratory action is the action of the person who claims that the debt does not exist. The reverse face of the annulment of the objection is not the same in every file. Annulment of the objection is the creditor's face.
The basis of the enforcement and the claim of payment shift the burden of proof.
The limitation of enforcement is in a separate writing.
Jurisdiction, capacity and the amount are looked at.
Related writings: on a judgment and without a judgment.
When a payment order is served, the first reflex is most of the time "let me object". While there is not yet an enforcement, a deed that passes from hand to hand, or notices one after another, produce another concern: the door of enforcement being knocked on even though one is not the debtor. A negative declaratory action looks for an answer to the common legal question of these two scenes — I am not the person obliged by this debt. The answer does not fit in the short box of the petition of objection. It asks for a determination on the substance.
This writing explains, for the purpose of information, what a negative declaratory action is, the paths before and after the enforcement, and the difference of the measure from restitution. It is a part of the field of enforcement and bankruptcy. It is not a copy of the writing on attachment or on the objection. There is no promise of a definite stay, or that "the enforcement ends".
What does a negative declaratory action mean?
A negative declaration is the determination, by a court decision, that a particular legal relation does not exist as to the debt that is claimed. The claimant claims that the deed, the invoice, the suretyship or the provision of the contract that the creditor relies on does not bind them. The subject of the action is, most of the time, facts such as "no debt ever arose", "the debt ended", "the signature does not belong to me", "the receivable belongs to someone else", or "the amount was inflated".
An action for a determination is a trial different from the short objection given to the enforcement office. The witness, the expert, the examination of the signature and the judgment on the substance are spoken of here. The aim is to break, on a legal ground, the pressure of enforcement built on a wrong claim of debt. Not every discomfort is the subject of a negative declaration. A legal interest is looked for, that is, a serious and current threat of a receivable.
Whom does it concern?
- Persons in whose hand a deed circulates, and who have not yet seen an enforcement
- Debtors who could not object to the payment order within the period
- Those who are pursued in the capacity of a surety, and who dispute the principal debt
- Merchants who do not accept the balance of an invoice or of a current account
- Those who paid under the threat of enforcement, and who ask for the money back
In a commercial file, the dispute of the competent court may differ from a consumer or a lease relation. The nature of the document is the first point of separation.
The path before the enforcement and after the enforcement
While there is not yet an enforcement, the negative declaration is opened in order to meet legally the future enforcement. At this stage an interim measure may aim at the enforcement being started, or at particular steps, being stopped. The measure is not automatic. The court looks at the credibility of the claim and, in most files, at security. If the threat is abstract, a refusal of the legal interest may come onto the agenda.
After the enforcement has started, the negative declaration builds another balance. In enforcement without a judgment, an objection to the payment order is short in time and, as a rule, stops the enforcement. If the period was missed, or if the objection stayed without a result, the negative declaration may still be open. At this stage the measure is asked for in order to stop temporarily the pressure of attachment and of sale. The burden of security most of the time increases. The sentence "I did not object, now nothing can be done" is not correct in every file. The delay makes the possibility of protection harder.
The difference of enforcement on a judgment and without a judgment determines the choice of the path here. In enforcement on a judgment the objection is narrow. The negative declaration is not a general door that disregards the judgment. In enforcement without a judgment, the dispute of the deed and of the signature stands wider.
The interim measure and the pressure of enforcement
The measure does not take the place of the judgment on the substance. A measure whose scope was written narrowly may allow some steps of the enforcement office. If the security is not deposited, the measure may not be set up at all. The security is a safeguard against the damage a wrongful measure will give rise to on the other side. Its amount depends on the concrete receivable and on the discretion of the court.
The measure before the enforcement and the measure after the enforcement should not be mixed with the same petition. One targets an enforcement that has not yet been opened. The other targets the attachment in the file that is running. The wrong request makes the refusal easier. The assumption "everything stopped", before the decision of the measure is served and entered on the enforcement file, is misleading as well.
After the attachment has come, the negative declaration does not put the money back into the till. First it disputes the legal basis of the step. If the money was paid, the heading an action for restitution should be read separately.
The difference from an action for restitution
Restitution asks for the return of money paid under the threat of enforcement. The negative declaration determines the non-existence of the debt. The two claims may stand side by side in the same event. Their legal results are different. The determination weakens the future enforcement. Restitution speaks of the money that has gone.
Payment is not counted as acceptance of the debt in every file. Payments made under the pressure of enforcement, under the fear of attachment, or under a wrong legal assessment, are read separately on the ground of restitution. A voluntary payment without a reservation may be interpreted differently. The explanation of the receipt, the correspondence and the time of the payment feed this separation.
The generalisation "I paid, so a negative declaration cannot be opened" is not correct. The generalisation "I paid, so my money returns in any case" is not correct either. The path is chosen according to the nature of the payment.
How does the process progress?
Typical steps may be ordered like this:
- Gathering the document that is the basis, and the enforcement file if there is one
- The diagnosis of the type of the enforcement — is it on a judgment or without a judgment
- Checking whether the period of the objection has expired
- Determining the legal interest and the correct defendant
- Assessing the need for a measure and the possibility of security
- Separating, in the petition of the action, the items of the determination, of the measure and, if there is one, of restitution
- Listing the means of proof — the signature, the payment, the renewal, the limitation
- The trial, the expert and the judgment on the substance
- After a judgment in favour, reflecting it on the enforcement file, and collection
The burden of proof is, as a rule, on the claimant: to show that the debt that is claimed does not exist. The defendant who has the deed in hand opposes with their document. If there is a denial of the signature, the examination lengthens. In files of a current account and of an invoice, the commercial books and the correspondence come forward.
The same frame of procedure applies in the enforcement files around the courthouse in Ankara as well. The density affects the pace of the security and of the hearing. It does not change the separation of the negative declaration and of the objection.
The action for annulment of the objection and the negative declaration should not be mixed either. The annulment of the objection is the action the creditor opens in order to set the objection aside and to continue the enforcement. The negative declaration is for the debtor's determination that "this debt does not exist". The position of the parties turns the other way. The same deed may be spoken of in both actions. The result of the request and the burden of proof are built differently. While the creditor has opened the annulment of the objection, the debtor opening a negative declaration may give rise to a dispute of lis pendens and of a preliminary issue. The strategy is shaped according to which action will become final first. It is not said by heart "open both of them".
A claim of a partial debt should be written separately as well. "There is no debt at all" and "the amount was inflated, interest should not run, it was paid in part" do not fit in the same sentence of the petition. The court has difficulty drawing the limit of the judgment in an uncertain request. If there is a receipt of payment, to which item of principal and of interest it was set off should be explained. That the surety's own debt ended — the period, the waiver, the renewal of the principal debt — asks for proof separate from the defence of the principal debtor.
Where the record of the negative declaration is read from
This writing reads side by side the enforcement file, the basis of the debt and the record of security. A security percentage that does not stand in the file is not written into this text. Counsel in Ankara reads from the document that the office being in Çankaya does not choose the competent authority. The annulment of the objection is not put in the place of this action. The record of security is read from the enforcement file. The frame is read, with the enforcement paper in the file, from the Enforcement and Bankruptcy Code No. 2004.
- Contenting oneself, after missing the period of the objection, only with "I think I objected"
- Writing a general petition of a negative declaration in enforcement on a judgment
- Asking for the measure without security and without a document
- Forgetting the money that was paid in the action for a determination, and skipping the restitution
- Choosing the wrong defendant (the principal creditor, the endorsee, the attorney)
- Leaving the denial of the signature oral, and delaying the request for a handwriting examination
- Postponing the gathering of the document after the attachment has come
The negative declaration opens the path on the substance against the threat of enforcement. It is not a magic button that stops the enforcement in every file. The objection, the measure and the restitution are separate doors.
The type of the document, the legal interest and the security
A negative declaration is not opened on every disturbing notice. The legal interest asks for a concrete and current threat of a receivable. A deed that passes from hand to hand, a cheque that was drawn, correspondence that contains a promise of enforcement, or an enforcement that has actually started, strengthens this interest. A balance that was forgotten years ago, that has become time-barred and that was never reminded, may be read by the court as "there is no need for a determination". Conversely, if the chain of endorsement is running, the threat is concrete. Waiting makes the choice of the defendant harder as the holder of the deed changes.
The type of the document changes the balance of proof. A deed to order and a denial of the signature are a separate procedure. An invoice and a current account ask for the commercial books, the order and the correspondence of delivery. A suretyship, while the debt of the principal debtor is disputed, requires the surety to make their own capacity clear as well. A consumer contract and a commercial relation separate the competent court. A wrong diagnosis of the document weakens the file both as to the measure and as to the substance.
Security is the threshold of most files in the measure after the enforcement. The amount depends on the claim of the receivable, on the amount of the enforcement and on the discretion of the court. There is no memorised fixed percentage. A request of "let the attachment stop" without the security being deposited may be refused. The security that was deposited is for the damage a wrongful measure will give rise to on the other side. It is not counted as winning the action. The return of the security after a judgment in favour is a separate procedure. In a judgment against, the other side may benefit from the security.
Competence and jurisdiction are discussed according to the place of the enforcement file and the settlement of the defendant. In a commercial receivable the commercial court, and in a consumer relation the consumer court, may come onto the agenda. The enforcement court is not the court of the substance of the negative declaration. It looks at disputes inside the enforcement, such as the removal of the objection. If this separation is mixed, an objection of jurisdiction eats the period. An enforcement-office file in Ankara does not lock the competence by itself if the settlement of the parties is in another province.
Limitation periods, and periods that extinguish the right, change according to the nature of the debt that is the basis. A deed, a contractual receivable and a tort are not bound to the same calendar. Opening a negative declaration does not always stop the period in the creditor's own action for the receivable. Gathering the documents early makes both the threat and the period visible.
A closing note
Saying that one is not the debtor, and having this determined in accordance with the procedure, are not the same work. The path before the enforcement carries the threat early onto a legal ground. The path after the enforcement stands beside the objection that was missed, or the attachment that did not stop. The measure is temporary. Restitution is for the money that was paid. The document, the period and the type of the enforcement shape all three.
This text is general information. Without the concrete deed, invoice or judgment, a result is not spoken of. The current legislation and judicial practice may affect the rules of security and of jurisdiction. Choosing the wrong door leaves the correct claim late.
Conclusion
This writing is for general information. The document, the period and the procedure of the concrete event should be read separately. There is no promise of a result by heart.