What Is a Negative Declaratory Action?

A person who believes an unjust enforcement proceeding has been initiated against them, or who risks facing one, can seek a court determination that they owe no debt through a negative declaratory action.

When Can a Negative Declaratory Action Be Filed?

Under Article 72 of the Enforcement and Bankruptcy Law (İİK), a negative declaratory action can be filed before enforcement proceedings begin, during the proceedings, or after the debt has been paid. Where filed before proceedings begin, the aim is to prevent a proceeding that has not yet started; where filed during the proceedings, the aim is to demonstrate that the existing proceeding is unjust.

Suspending the Enforcement Proceeding

In a negative declaratory action filed during the proceedings, the debtor may, upon request and by posting security equal to 15% of the claim, ask the court to order the suspension of the enforcement proceeding (İİK Art. 72/3). If this request is not granted, the proceeding continues until the case is concluded.

The Difference Between a Negative Declaratory Action and a Repayment Action

If the debtor has been forced to pay the debt because of the enforcement proceeding, they no longer file a negative declaratory action but a repayment action (İİK Art. 72, final paragraph). A repayment action seeks the return of the amount paid and is subject to a one-year limitation period running from the date of payment.

Who Bears the Burden of Proof?

In a negative declaratory action, the burden of proof rests, as a rule, on the claimant debtor; however, if the document underlying the enforcement request demonstrates a definite debt relationship — such as a negotiable instrument — the burden weighs more heavily on the debtor claiming that no debt exists.

Practical Recommendations

If you believe an unjust enforcement proceeding has been initiated against you, before making any payment, consider the option of filing a negative declaratory action and requesting a suspension of the proceeding against security. Since filing suit after paying the debt is subject to a different deadline and procedure, it is important to clarify this distinction with a lawyer.

This article is for informational purposes only and does not constitute legal advice. Please contact our team regarding your specific situation.