How are the Pecuniary Claims Collected?

The debts arising from the law or contracts are willy, in other words, with the debtor’s own consent, paid by the debtor to the creditor. Although this is what should happen, debtors may not always pay their debts on time of their own will.  In such cases, creditors will have to take action to collect their receivables. However, what is meant here is not that the creditor takes a direct action against the debtor. Because in our law, if the debtor does not pay the debt, the creditors do not have the authority to use force against the debtor on their own. This is called the prohibition of repossession (prohibition of vigilantism ). It is only possible for the creditor to collect the debt and for the debtor to be compelled to pay the debt, only through the State and with the judicial and compulsory enforcement power that it has the authority to use.

There are two ways that the creditor can choose against the debtor who does not pay the debt.

• The first of these is that the creditor files an action of debt against the debtor and the judgment awarded in this action in favor of the creditor is subject to enforcement proceedings.
• The second way is to issue enforcement proceedings regarding the right to receivable directly from the enforcement offices without resorting to filing a case.

In both cases, the final stage is the enforcement stage in order to obtain the right to claim. The creditor shall issue enforcement proceedings against the debtor who does not voluntarily pay the debt, whether the creditor has a court decision on the right to claim or not.

1. Filing an Action of Debt

If the debtor does not pay the money owed to the creditor of its own will, it is possible for the creditor to apply to the remedy to collect this receivable. In the action of debt to be filed, it is tried to prove that the debt arises, the debtor of the debt is the defendant party, and the debt is a valid debt. Depending on the source of the debt in question, the ways to prove to be carried out in the action of debt vary. For example, the source of the debt may be a tort or contract. Unjust enrichment and negotiorum gestio are among the debt sources according to the Code of obligations. Whatever the source of the right to claim is, the burden of proof and the means of proof will vary. Again, depending on the amount and type of receivable, there may be an obligation to prove it with a deed. In short, by proving the existence of the right to claim in the lawsuit, it will be tried to obtain a positive verdict.

As a rule, a debt is due any payable from the moment it arises; In other words, it is a debt that can be paid and demanded to be paid from the moment it arises. It is possible to claim such debts by filing a lawsuit. However, it will not be possible to achieve success if the imperfect obligations, which do not have the right to demand and litigation, are the subject of a debt lawsuit. For example, filing a lawsuit and proceeding for the collection of imperfect obligations such as debts barred by limitation, debts arising from gambling and betting, debts arising from lottery and other games of chance, which are not allowed by the legal order, will not bear consequences.

If the debtor’s action bears a positive consequence, in the cases when the debtor does not voluntarily pay the judgment in favor, the creditor shall file an enforcement case with this decision.  Enforcement proceedings issued based on a court decision are called enforcement proceedings with a judgement. As a rule, it is not possible for the debtor to oppose the execution proceeding with judgement and not pay the debt or object to the debt. It can be said that the creditor, who has a court decision, has an advantage over the debtor in the enforcement proceedings with a judgement. However, it should be reminded that it is still possible for the debtor to request for the suspension or postponement of the execution against the enforcement proceeding with a judgement.

As a result of the enforcement proceeding with a judgment, the debtor’s property is seized and sold, and the creditor is granted the right to claim.

2. Issuing an Enforcement Proceeding

It is also possible for the creditor to collect the receivables by applying directly to the enforcement office, without the need for the debtor to file a lawsuit and sometimes even to present a document. The type of enforcement proceedings to be issued varies according to the source of the claim and the documents. Basically, there are two types of proceeding: with and without judgment. For enforcement proceeding with judgement, there must be a debt attached to a judgment or a document in the nature of a judgment. If these are not available, enforcement proceeding without judgment should be resorted to.

Only for the collection of money and guarantee receivables, enforcement proceeding without judgment may be issued. For receivables other than this, it is absolutely necessary to apply to the court and get a court decision on this issue. However, the creditor does not necessarily have to file a lawsuit for the collection of money receivables. For example, a creditor who does not have any documents to prove the right to claim may apply directly to the proceeding through general attachment without filing a lawsuit. If the right to claim is attached to a bill of exchange such as a check or bond, a proceeding procedure can be applied through an attachment peculiar to the bills of exchange. It is possible to collect a receivable secured by a mortgage or other right of pledge by initiating a proceeding by foreclosure.

If the creditor has a court decision or one of the documents in the nature of a judgement envisaged in the Law, it is possible to issue an enforcement proceeding with a judgement for the collection of the receivable. The following are the types of enforcement proceedings in a nutshell;

ENFORCEMENT PROCEEDING WITHOUT JUDGEMENT	ENFORCEMENT PROCEEDING WITH JUDGEMENT
Enforcement Proceeding Through General Attachment	Proceedings of Receivables Pertaining to a Judgement
Attachment Proceeding Pertaining to Bills of Exchange,	Proceeding of Receivables Pertaining to a Document Having the Nature of Judgement
Enforcement Proceeding Without Judgement Through Foreclosure,	Enforcement Proceeding With Judgement Through Foreclosure,
Evacuation of Leased Immovables Through Enforcement Proceeding without Judgment

Conclusion

If the debtor does not willingly pay the money owed, the creditor can collect the debt by filing a lawsuit or issuing enforcement proceedings. The important thing here is to evaluate the source of the creditor’s claim, the documents on which it is based and the existence of the evidence tools, and to choose the easiest and most successful way to get  a successful result. The choice and successful execution of enforcement proceedings or litigation is only possible with professional legal support. These issues are very detailed and require expertise, and due to the shortness and certainty of the deadlines, failure to act on time or making wrong moves can unfortunately lead to loss of rights.

For more information, you can contact Solmaz Law and Consultancy Office.

Best Regards.

References

EREN, Fikret, (2011), Borçlar Hukuku Genel Hükümler, Beta Yayıncılık.

KURU, Baki, (2016),  İcra ve İflas Hukuku, Legal Yayınevi.

Enforcement and Bankruptcy Law

Turkish Code of Obligations