Enforcement proceedings without judgment begin when the creditor claims to be a creditor from a person by applying to the enforcement office. Moreover, the creditor does not even need to have any documents in order to initiate enforcement proceedings. It is possible to initiate enforcement proceedings without judgment against the person whom the creditor claims to be the debtor and to send a payment order to the debtor only with the declaration of the creditor. An enforcement proceeding, which can be initiated so easily for the creditor, is also suspended upon a simple objection of the debtor to the payment order sent. This situation serves the purpose of maintaining the fair balance between the creditor and the debtor in the law of enforcement. When the enforcement proceedings initiated by the person who is actually a creditor are stopped by the debtor’s groundless objection, the creditor must take action to continue this proceedings.
There are two options before the creditor in order to continue the enforcement proceedings, which was suspended by the objection of the debtor. The first of these is that the creditor files an action for the withdrawal of the objection in the general courts. You can access the article in which we examined the action for the withdrawal of the objection on our website (see. To Continue the Execution Proceedings Halted by the Objection of the Debtor: Actions for Withdrawal of Appeal)
In this bulletin, we have examined the request for the annulment of the objection made to the enforcement courts in order to continue the enforcement proceedings by eliminating the objection of the debtor, and the decisions to be taken upon the examination to be made upon this request.
1. Request to Annul the Appeal
As we have stated before, in order to continue the enforcement proceedings, which suspended after the debtor’s objection to the payment order, the creditor must win this lawsuit by filing a lawsuit for the withdrawal of the objection. However, due to the length of the trial and decision process in this case, it may be difficult for the creditor to obtain the right to claim. However, the purpose of enforcement proceedings without judgment is to allow the creditor to collect the receivables without having to deal with the litigation procedure and wait for long periods of time. For this reason, a more practical solution has been introduced that will allow the creditor to eliminate this objection in a short and easy way without filing a lawsuit, and to collect the receivables by continuing the enforcement proceedings, which is the request of the creditor to annul the objection from the enforcement court.
The request for the annulment of the objection can be made to the enforcement court in writing or verbally. Applying for the procedure to annul the objection does not mean that a lawsuit has been filed. However, when applying this way, the creditor must pay the application fee, decision and judgement fee.
In order for the objection to be lifted, the debtor must have objected within 7 days. Since the objection made after 7 days will not be valid, there is no need to resort to the annulment of the objection.
“In article 62/1 of the EBL; “The debtor who wishes to object is obliged to deliver his/her objection to the enforcement office, either verbally or with a petition, within seven days from the date of notification of the payment order”.
In the concrete case; It has been understood that the payment order issued on behalf of the debtor was notified on 17.11.2018, and the objection made by the said person to the enforcement office was after 30.11.2018, that is, after the 7-day objection period. In this case, the debtor’s objection to the enforcement office has no legal consequences. Therefore, the request for the annulment of the objection has no issue in terms of the debtor …”.[1]
2. Types of Annulment of Objection Procedure: Temporary and Final Annulment
There are two ways to remove the objection; These are the ways of final annulment of the objection and temporary annulment of the objection. The temporary annulment of the objection is applied in case the debtor objects to the signature under the ordinary promissory note. That is, in cases where there is an objection to the signature, the creditor should try to eliminate this objection by applying for the temporary annulment of the objection.
Since all objections other than the objection to signature are accepted as objections to the debt, an application for the final annulment of the objection must be filed against them. Applications to both ways are made to the enforcement courts. In the final annulment procedure of the objection in the enforcement court, the creditor and indebtedness status is tried to be determined through documents, while in the temporary annulment procedure, only the signature is the debtor’s and the justification of the other objections that do not contradict the objection to the signature are examined.
If the application for the final annulment of the objection is accepted in favor of the creditor, the enforcement proceeding continues. If the request for temporary annulment of the objection is accepted in favor of the creditor, the creditor may also request the temporary attachment of the debtor’s properties.
3. Application Period for the Annulment of the Objection
The application to the procedure for annulment the objection must be made within 6 months from the notification of the debtor’s objection to the creditor (EBL art. 68). This period is the final term, and after the 6-month period has passed, the objection cannot be requested to be annuled. In this case, what the creditor can do is to file a lawsuit for the annulment of the objection if the 1-year period has not expired, and to file a claim against the debtor in the general courts if this period has passed.
4. To Which Court is the Annulement of Objection Made?
The request for the annulment of the objection should be made to the enforcement courts. The competent enforcement court, on the other hand, is the enforcement court in the place where the enforcement proceeding is carried out, and this authority is in the nature of final authority. Claims directed to the unauthorized enforcement court will be rejected by the court.
Demands for both the final and temporary annulment of the objection are examined in the execution court according to the simple procedure (CCP art. 316-322, EBL art. 70, art. 18, I). The examination is held with a hearing.
5. Documents Required to Apply for the Annulment of the Objection
The creditor’s application to the procedure for the annulment of the objection in an easy way without filing an action for annulment of the objection and obtaining results depends on the possession of certain documents listed in the Law. These documents are listed in EBL article 68/I. Accordingly, the creditor must have the following documents;
- Signature of the admitted (accepted by the debtor) ordinary promissory note
- Notarized promissory notes
- Documents given duly and within the authority of official offices or competent authorities
These documents are sought for the procedure for the final removal of the objection, and since it is an ordinary bill whose signature has not been accepted but denied, this document will not be sought in the temporary annulment. Again, since the debtor’s signature will not be found in the documents prepared by the official offices or the competent authorities, and therefore there can be no objection to the signature, the existence of this document is not sought.
Since notary bills in the form of an arrangement containing an unconditional acknowledgement of money debt are considered documents of the nature of a judgement, the creditor who has this document will go to execution with a writ. In the execution with a judgment, the execution order is sent to the debtor, not the payment order, and since it is not possible to object to this enforcement order, there is no procedure for the annulment of the objection. For this reason, notary bills in the form of regulation are not among the documents listed in EBL art. 68 and which are useful for the annulment of the objection.
Alimony decisions, enforcement minutes, insolvency certificate and final pledge deficit documents can be given as examples of documents that can be used to remove the objection within the meaning of EBL article 68.
One of the issues to be considered here is the qualifications that the ordinary bill should have. In order for an ordinary bill to be mentioned within the meaning of EBL article 68, the bill must contain an unconditional acknowledgment that a monetary debt must be paid, and the debtor’s signature must be present on the bill. Otherwise, there is no deed within the meaning of EBL article 68 and the objection cannot be demanded based on this deed. For example, invoices that do not bear the debtor’s signature, or only contractual documents, do not qualify as promissory notes even though they are written evidence. However, if it is written in a written sales contract that the goods are delivered to the buyer and that the buyer will pay the sale price of the goods on a certain date, this sales contract is also an acknowledgment of debt within the meaning of EBL article 68. Again, in a follow-up for rental receivables, a lease agreement in which the lessee receives the leased property and the lease receivable is written is also considered as a document within the meaning of EBL article 68 and can be used to remove the objection.
“As per article 68/1 of the EBL; If the proceeding of the creditor whose demand is objected is based on a receipt or document that is duly issued in a year containing the acknowledgment of the debtor whose signature is acknowledged or certified by the notary public, or within the authority of the official offices or the competent authorities, the creditor may request that the annulment of the objection.
On the other hand; Pursuant to Article 63 of the EBL, just as the objecting debtor cannot change or expand the reasons for objection, other than those understood from the text of the deed on which the creditor is based, in the hearing for the annulment of the objection, it must be accepted that the creditor cannot put forward a document that he/she did not make the subject of proceedings and did not submit to the proceeding file at the stage of annulment of the objection.
In the concrete case, in the examination of the enforcement proceeding file scanned in UYAP system, it is understood that the basis of the proceeding without judgment was shown as “the actual receivable dated 06.12.2018 is 310.000.00 TL”, and that no documents were submitted to the proceeding file by the creditor when the proceedings were opened, therefore that one of the documents regulated in article 68/1 of the EBL was not relied upon, and that the debtor objected to the debt and its associates in the petition of objection submitted to the enforcement office in due time, and that for the first time by the creditor, the evidence part of the lawsuit petition dated 04.11.2019 was based on the document as “document containing debt signed by the debtor” and a copy of the promissory note was submitted to the court with the petition dated 26.12.2019. Although it has been determined by the Regional Court of Justice that the fact that there is no document in the follow-up is appropriate, It is not possible to accept the reasoning that the deed presented by the creditor for the first time during the annulment of the objection phase is the same as the debt subject to the proceeding and has the quality of a document containing an unconditional acknowledgement of debt, in accordance with the rule that it is based on interpretation and that the creditor cannot rely on a document not submitted in the proceedings during the annulment of the objection.[2]
Decisions and Consequences of the Court as a result of the Annulment of Objection Process
In the hearing proceedings to be held in the enforcement court, the parties can only prove their mutual claims with the documents in EBL article 68. In this trial, there is no opportunity to hear witnesses or apply for evidence of oath. Only the expert examination to be made on documents and in case of temporary annulment is used as evidence. It is possible for the court to accept or reject the request for the removal of the objection as a result of the trial.
If the enforcement court considers the creditor to be justified and decides to remove the objection definitively, the objection made by the debtor will be eliminated and the creditor may request that the enforcement proceeding be continued without a judgement. In addition, if the court has decided to annul the objection for a fundamental reason, it also decides to pay compensation not less than twenty percent of the claim that the debtor has unjustly objected to (EBL m.68/end). Upon the final decision to annul the objection, the creditor may request the seizure of the debtor’s properties, and if the debtor thinks that the decision is unfair, he/she will try to prove that he/she is not indebted by filing a negative declaratory action or a replevin case in the general courts.
If the enforcement court decides to reject the request for the annulment of the objection in favor of the debtor, the creditor cannot proceed with the enforcement proceedings. In addition, if the court has given a decision of rejection for a fundamental reason, it also condemns the creditor to pay compensation not less than twenty percent of the disputed claim. In this case, the creditor may file a lawsuit for the annulment of the objection, both to prove that she/he is a creditor and to avoid paying this compensation during the lawsuit.
Decisions regarding the rejection or acceptance of the request for the final annulment of the objection do not constitute a final judgment in material terms. In other words, the debt relationship between the parties can be subject to other lawsuits. If it is not stuck in monetary limits, it is also possible to take legal action against acceptance or rejection decisions.
If the request for temporary annulment of the objection is accepted in favor of the creditor, the creditor may request the temporary attachment of the debtor’s properties. The sale of these goods cannot be demanded before the temporary lien turns into a final lien. The debtor has to declare the property within 3 days from the notification of the temporary annulment decision. With the temporary annulment decision, the debtor is sentenced to a fine of 10 percent of the receivable that is subject to prosecution, and to compensation not less than twenty percent of the receivable. It is possible for the debtor to file a lawsuit against the temporary annulment decision, called the debt relief lawsuit, within 7 days from the expiry or notification of the decision. This case is filed in general courts, not in the execution court. Without being limited to 7 days, it is also possible for the debtor to file a negative declaratory action to prove that he is not a debtor. However, in order to prevent the lien on the debtor’s goods from turning into a final lien, and the temporary annulment decision from turning into a final annulment, and to stop the proceedings, the debtor must file a lawsuit to discharge of the debt within 7 days. These results will not be obtained with the negative declaratory action.
If it is decided that the request for temporary annulment of the objection is rejected in favor of the debtor, the creditor is sentenced to compensation not less than twenty percent of the debt subject to the proceedings. The creditor can file a claim in the general courts in order to prove her right to claim and that the signature belongs to the debtor.
“As per article 269 c/II of the EBL; In case the deed or receipt is denied by the creditor, the provision of Article 68 is applied by analogy. According to Article 68/5 of the same Law, if the signature under the document shown by the debtor is denied by the creditor, if the judge determines that the signature belongs to the creditor as a result of the examination carried out according to the procedure written in Article 68/a, he/she rejects the creditor’s request for the annulment of the objection and sentences the creditor to a fine of ten percent of the value or amount of the said document. . If the creditor files a lawsuit in the general court, the execution of this fine will be postponed until the end of the lawsuit, and if the creditor proves in this case that he will receive it and that the signature does not belong to him/her, this penalty is annulled.
Although it is seen that the creditor denied the additional protocol submitted by the debtor, in the petition for the annulment of the objection dated 13.9.2017, in the petitions of appeal and appeal, at all stages, did not accept the signature under it, and requested a signature examination if necessary, The Court of First Instance and the Regional Court of Justice did not find it right to reach a conclusion by taking the additional protocol as a basis, on the grounds that the creditor did not object to the signature in the protocol in question.
Although the narrowly authorized enforcement court does not have the authority to examine the denied signature on the document on which the enforcement proceeding is based, if the signature under the contract dated 25.09.2014 submitted by the debtor belongs to the creditor, it will be necessary to accept that the previous contract has been changed in terms of the rental price, which is the subject of dispute, when the contract dates are taken into account, and that the contractual relationship between the parties continues according to the last contract in terms of rental price, as the signature in the additional protocol on which the debtor is based was denied by the court, the original of the additional protocol referred to in accordance with Article 68 of the same Law, pursuant to the provision of Article 269 c / II of the EBL, while an expert examination should be made to determine whether the signature in the protocol belongs to the creditor, and a decision should be made according to the result, the decision to reject the request with an incomplete examination in written form was inaccurate and the decision was reversed.”[3]
Conclusion
The annulment of the objection procedure, which is the shortest and easiest way to continue the enforcement proceedings, which stopped with the objection of the debtor, is a technical legal examination carried out in the enforcement courts. It is determined whether the enforcement proceedings can be continued as a result of the proof activities that the creditor and the debtor will carry out with documents limited only to those listed in the law. If the application and follow-up is done correctly, it is possible to get successful results from the procedure for the annulment of the objection.
For more information on the subject, you can see the other articles on the blog section of our site, and contact the Solmaz Law and Consultancy Team for detailed information and consultancy.
Best Regards.
References
KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, s.120-135.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, s.158-169.
12nd Civil Chamber of the Supreme Court, 2021/2658 E., 2021/7162 K.
12nd Civil Chamber of the Supreme Court, 2021/2178 E., 2021/6545 K.
12nd Civil Chamber of the Supreme Court, 2021/5319 E., 2021/6542 K.
Enforcement and Bankruptcy Law
[1]12nd Civil Chamber of the Supreme Court, 2021/2178 E., 2021/6545 K.
[2]12nd Civil Chamber of the Supreme Court, 2021/2658 E., 2021/7162 K.
[3]12nd Civil Chamber of the Supreme Court, 2021/5319 E., 2021/6542 K.
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