A warning is made to pay the debt within 7 days (or it can be 10 days or 30 days depending on the type of proceeding) by sending a payment order by the enforcement offices. The debtor of the debt specified in the payment order is not necessarily the person to whom a payment order is issued and notified. To put it more clearly, the bailiff is obliged to issue and send a payment order upon the application made by the creditor to the enforcement office. Here, the only criterion is whether the application is duly applied to the enforcement office. If the person claiming to be a creditor has made a valid application to the enforcement office, the bailiff cannot automatically investigate whether the person shown as the debtor is really indebted, whether the creditor has a document proving the receivables, if there is a debt, whether it has been paid, whether the debt is time-barred, etc. Investigation of these issues will only be possible by objecting to the debt made by the party shown as the debtor.
The person who thinks that she/he is not the debtor of the debt written in the payment order for some reason, should object to the payment order notified to her/him in due time. The objections that the debtor can make are divided into two. These are the debtor’s objection to the signature under the ordinary bill or the debtor’s objection to the debt in whole or in part.
In this bulletin, the objection to the debt, which is one of the objections that the debtor can make against the payment order, has been examined. From the content of the newsletter, you can find answers to your questions such as how to object to the payment order, when and where to object, what will be the consequences if the payment order is not objected to.
1. Is it Possible to Object to the Debt Specified in the Payment Order?
It is possible to object to the debt written in the payment order, and even if the debtor thinks that she/he does not have such a debt, she/he must object before the deadline. If a payment order is served to a person, that person will be able to act in 3 ways;
- To pay the debt to the enforcement office within the time specified in the payment order,
- To object to the debt or, if possible, to the signature within the time specified in the payment order,
- To declare property within the same period by not paying the debt written in the payment order and not objecting it.
If the debtor pays the debt written in the payment order in due time, the execution proceeding ends. However, in case of objection to the payment order, the enforcement proceedings issued against the debtor shall halt. For this reason, it is very important to object to the payment order on time. Otherwise, in case of objection or no objection after the deadline, the enforcement proceedings will not be halted and upon the request of the creditor, the debtor’s properties are seized. After the seizure process, the goods are sold and the debt is paid to the creditor upon the request of the creditor for sale. The debtor must object to the payment order in a timely manner in order to prevent the seizure and sale of the goods.
“For the objection petition submitted by the debtor in due time, the Enforcement Directorate, where the transfer is insufficient, must decide to halt the proceedings.
In the enforcement proceeding without judgment with the filenumbered ….. of the Enforcement Directorate in ………., the debtors objected to the debt by claiming that the enforcement office was not authorized, that the debt was not owed, that the requested interest was exorbitant and that there was a repeated proceeding in their objection petitions filed within the time limit. No action was taken by the executive directorate, only the objection petition was transferred. While the execution should be stopped by the executive directorate, it is not correct to take action otherwise.”[1]
2. What Issues Can Be Objected About Debt and Enforcement Proceeding?
All objections other than the objection to the signature of the debtor to the payment order are considered as objections to the debt and bear these consequences. The objections to be made by the debtor may be related to the substantive law and entirely related to the debt, or there may be objections only related to the enforcement proceedings and pertaining to it.
For example, regarding the debt owed;
- Payment of the debt may be objected,
- The debtor may object that the debt has not become due yet,
- The debtor may claim that the debt is not due adn payable,
- The debtor may object that the debt has lapsed,
- The debtor may suggest that there is no such debt at all,
- The debtor may argue that the debt is contingent but that this condition has not been fulfilled,
- If the subject of the proceeding is a bill, the debtor may claim that this bill is free of charge (commemorative bill),
- The debtor may claim that the creditor has given extra time to pay.
- The debtor may object to the original debt, the interest on the debt, or both.
The Supreme Court notes whether the debtor has objected to the main debt, the interest or both, and states that the proceedings should be halted only for the part which is objected. The following decision exemplifies this view of the Supreme Court;
“While it should be decided by the executive directorate to halt the proceeding regarding the interest, it is not right to decide to halt the proceeding in whole even though there is no objection to the main debt, While it was necessary for the court to abolish the bailiff’s action regarding the suspension of the proceedings in matters other than interest, the decision to reject the complaint made against the decision to cancel the proceedings altogether was inappropriate, and the decision had to be reversed for this reason.” [2]
The debtor’s objections not only to the debt but also to the enforcement proceedings against the debtor are considered as objections to the debt. For example,
- The debtor may claim that the enforcement office is not competent,
- The debtor may claim that there is another enforcement proceeding against him/her for the same debt that has already been issued and is still in progress (pendency or repeating proceeding objection).
“The objection to the repeating proceeding in the enforcement proceeding without judgment is in the nature of an objection to the debt and should be made to the enforcement office in accordance with article 62 of the EBL. The application to the executive court does not bear legal consequences.”[3]
It is possible for the debtor to object to the entire debt in the payment order, or to accept some of it and object to some of it. This is called a partial objection. In order for the partial objection to bear consequences, it is absolutely necessary to specify how much of the debt is objected, separately and clearly. Otherwise, the objection will be invalid and will not halt the proceeding. The Supreme Court decides on this matter as follows;
“The objected part is not specified. Since there is no valid objection in this case, the proceeding has been finalized.
It is seen that the debtor objected against the proceeding by applying to the enforcement office in due time. Pursuant to Article 62/4 of the EBL, the debtor objecting to a part of the debt must clearly indicate the amount of that part. Otherwise, it is not considered objected. In the concrete case, in the petition of objection dated 26.07.2010 submitted by the debtor to the execution file, a statement was made as follows, but the part which was objected was not specified, “the invoice and its annexes regarding the debt in question were not notified to me. For this reason, I do not partially accept the debt in question after the notification of invoices and receipts proving this. I will declare again after the invoice and receipts are notified to me of the amount to be accepted. Therefore, I would like it to be decided to halt the proceeding due to a lack of Notification of some documents. Since there is no valid objection in this case, the proceeding has been finalized. It is not appropriate to decide to halt the proceeding on the basis of the objection by the executive directorate.”[4]
3. When and Where Should Objection to Debt Be Made?
Objection to the debt in the payment order must be made within 7 days from the notification of the payment order in the proceedings without judgment through general attachment. If the enforcement proceeding is through attachment pertaining to bills of exchange, which is preferred in the proceedings of receivables based on a check or bill, then the objection period to the payment order is 5 days.
Objection to the debt must be made to the enforcement office in the proceedings through general attachment. As a rule, the objection should be made to the enforcement office that sent the payment order, that is, where the proceeding is made. However, the debtor may notify the objection to the enforcement office other than this enforcement office, provided that the debtor pays the necessary expenses, and this objection is delivered to the enforcement office where the proceeding is made. The debtor’s objection to the wrong enforcement office was evaluated by the Supreme Court as a material error and it was accepted that it was made on time. The summary of the relevant decision is as follows;
“The debtor’s objection to the wrong enforcement office within the legal period is a material error and is deemed to have been made within the objection period. The payment order was notified to the debtor on 17.02.2003, and the debtor’s attorney, İ…., Who objected to it, sent the petition of objection, which he sent on 19.02.2003 via the Enforcement Office on Duty, to the Ankara 17th Enforcement Directorate, But sent it to the Ankara 12th Enforcement Directorate as a result of a material error. Since the petition of objection was handed over to the 17th Enforcement Directorate by the debtor on 28.05.2003, the proceedings were stopped on the same date by the 17th Enforcement Directorate. The mentioned material error does not prevent the objection to the debt within the legal period. For this reason, it is wrong to decide to accept the complaint while it should be decided to reject the complaint.[5]
If there is a proceeding through attachment pertaining to bills of exchange, the objection to the debt must be made to the enforcement court. In the following Supreme Court decision, the fact that the objection to the debt was not made in due time in the proceeding pertaining to the bills of exchange was seen as the reason for the reversal of the local court decision;
“The request is about the objection to the debt made to the enforcement court in the proceeding based on the bill of exchange. The claim of the debtor, who does not have a duly complaint including the allegation that the notification is illegal in the petition filed with the enforcement court, does not allow the court to automatically examine and evaluate whether the transaction regarding the notification of the payment order has been duly carried out. For this reason, according to the notification date of the payment order, the local court should decide to reject the objection made after the legal 5-day deadline due to the statute of limitations, but it is against the procedure and the law to make a decision based on an improper notification as a result of an misidentification and wrong evaluation. “[6]
4. What are the Consequences of Objection to the Debt?
If the person to whom a payment order is sent objects to the debt based on the above reasons, or only objects without stating any reason, this situation is an objection to the debt. Although the debtor does not need to indicate any reason while objecting to the debt, if the reasons for the objection to the debt are also shown in the objection, the debtor will be bound to the enforcement court in the procedure of withdrawal of appeal applied by the creditor against the debtor for the reasons the debtor has shown. To put it more clearly, the debtor cannot object to the debt by citing reasons other than the ones she/he has shown before. However, in the withdrawal of appeal cases, the debtor is not subject to such a limitation, and she/he can freely claim the reasons for the objection.
In case of objection to the debt within the time limit, the enforcement office halts the enforcement proceedings against the debtor. The creditor cannot continue the enforcement proceedings and cannot demand the seizure and sale of the debtor’s goods.
At the next stage after the objection, the creditor must take action and ensure that the proceedings are continued. For this, the creditor will either apply for the withdrawal of appeal in the enforcement court or file a lawsuit for the withdrawal of appeal in the general courts, eliminating the objection of the debtor and ensuring that the proceeding continues. You can benefit from the bulletins on this subject on our website for more detailed information on the suspension of the objection and the withdrawal of appeal.
Conclusion
Objection to the payment order is a procedure that stops the enforcement proceedings against the debtor and prevents the seizure and sale of the debtor’s goods. However, in order for these results to arise, the objection must be made within the legal time limit and duly. It is recommended to take professional legal consultancy services in this regard, since the objection to the payment order and the suspension of objection after it, the appeal and legal remedies such as the withdrawal of appeal and the proceeding of the process require expertise.
You can contact our team for more detailed information and consultancy on the subject.
Best Regards.
Solmaz Law and Consultancy Team.
References
KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, s.106.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, s.140-141.
SÜPHANDAĞ, Yavuz, (2015), İcra ve İflas Hukukunda Uygulamalar, Bilge Yayınevi, 9. Baskı (the work was used to access judicial decisions.)
12nd Civil Chamber of the Supreme Court, E. 2010/1851, K. 2010/13216.
12nd Civil Chamber of the Supreme Court, E. 2005/10580, K. 2005/14492.
12nd Civil Chamber of the Supreme Court, E. 2009/24854, K.2010/7094.
12nd Civil Chamber of the Supreme Court, E.2010/28156, K.2011/9655.
12nd Civil Chamber of the Supreme Court, E. 2003/21352, K. 2003/24439.
SCACC, 27.01.2010, E.12/539, K.16.
Enforcement and Bankruptcy Law
[1] 12nd Civil Chamber of the Supreme Court, E. 2010/1851, K. 2010/13216.
[2] 12nd Civil Chamber of the Supreme Court, E. 2005/10580, K. 2005/14492.
[3] 12nd Civil Chamber of the Supreme Court, E. 2009/24854, K.2010/7094.
[4] 12nd Civil Chamber of the Supreme Court, E.2010/28156, K.2011/9655.
[5] 12nd Civil Chamber of the Supreme Court, E. 2003/21352, K. 2003/24439.
[6] SCACC, 27.01.2010, E.12/539, K.16.
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