Application for Complaint in Enforcement Law

The persons concerned can apply to the enforcement court with an application for complaint, against the transactions made by the enforcement or bankruptcy bodies against the law or inconsistent with the concrete case. A complaint is a kind of legal application pertaining to enforcement law. This application, which is not technically accepted as a lawsuit or legal remedy, is considered a legal action. With a complaint, it can be requested from the enforcement court to cancel or correct the erroneous actions of the enforcement or bankruptcy office, as well as to make a request for these bodies to perform the actions that they are obliged to do, or which they impede.

In this bulletin, we have explained the situations in which a complaint can be filed in enforcement law, the duration of this application and its procedure.

1. Cases in Which An Application for Complaint Can Be Filed

The reason for resorting to complaints in enforcement law is that the executive bodies do not fulfill their duties related to the enforcement law or they make mistakes. In case the bailiffs do not perform an action that they are obliged to do according to the law, neglect to do it or delay it continuously without any reason, a complaint can be made, and it can be filed if the actions they have performed are not in compliance with the law. Accordingly, the situations in which a complaint can be made can be grouped as follows;

  • The act of the bailiff is against the law: If the action taken by the bailiff is against the law and is not carried out in the manner prescribed by law, a complaint may be filed. Here, the Law should be understood not only as the Enforcement and Bankruptcy Law, but also as all legislation. For example, the most common reason for complaint is the violation of the Notification Law regarding the notification of the payment order in the enforcement law.
  • If the action taken by the bailiff is not in accordance with the case: This situation comes to the fore when the law gives the power of discretion to the bailiff regarding the action to be taken. The executive director must act in accordance with the characteristics and requirements of the concrete case while using the power of discretion given to her/him. Otherwise, the action taken will be subject to complaint. For example, while the goods should not be seized in a way that is sufficient for the subsistence of the debtor and his/her family, a complaint can be filed in the event that the enforcement manager makes a mistake in this calculation and in case the debtor is victimized by seizing more property than necessary.
  • The bailiff’s refusal to perform the action: If the bailiff is obliged to perform a transaction within its scope of duty, but refuses to do so, a complaint can be filed.
  • If the bailiff impedes to perform the action without any reason: If the bailiff does not openly refuse to perform an action, but neglects to do it or insists on not doing it without any reason, this is a reason for complaint.

2. Against Who Should An Application for Complaint Be Made?

The actions in question of the application for complaint must be the actions of the enforcement or bankruptcy offices. However, in practice and in doctrine, enforcement and bankruptcy officers are not the complained party, but only persons such as the creditor who benefits from the action subject to the complaint are presented as the adverse party.

The law regulates that a complaint can be filed against the administration of bankruptcy, the trustee in composition and the collection of creditors.

Anyone interested and concerned can apply for complaint.

3. Complaint Period

As a rule, the application for complaint should be made within 7 days from the date of discovery about the process subject to the complaint. If the process subject to the complaint has been notified, this period will start to run from the date of notification. The 7-day period regarding the complaint is final and constitues a final term. The enforcement court automatically examines whether the complaint is filed in time, and rejects the complaints that are not made on time.

The 7-day complaint period is the general complaint period, and the complaint period regarding that the creditor does not have the right to apply for seizure pertaining to the bills of exchange is 5 days (EBL art. 168/3, 170/a , 1).

Although the rule is that a complaint must be filed within 7 days, there are cases in which a complaint can be filed without being limited to such a period.  These are called indefinite complaint grounds. Cases that can be subject to an indefinite complaint can be classified as follows;

  • In the event that the bailiff does not take a action or impedes the action without any reason, a complaint can be filed at any time without being limited to 7 days.
  • In case of violation of public order, this case can always be the subject of a complaint. Here, what should be understood from the violation of public order is the cases of performing actions that are in violation of the mandatory provisions of the laws or the cases of deficiencies in the actions that are the essential elements of the enforcement proceedings. For example, if the debtor’s goods are seized without the payment order being notified, an essential element of the proceeding is missing and this case constitues a reason for an indefinite complaint. Yet another example, in the event that the rule regarding the obligation to apply for the pledge first regarding a receivable secured by a pledge is violated, a complaint can be filed indefinitely if a proceeding is made through a general attachment.
  • Below are examples of judicial decisions on this issue;

Since the personality of real persons and the legal capacity with it, ends with death, a deceased person does not have the standing. Initiated and ongoing proceedings against those who do not have the standing are invalid. The invalidity of these transactions can always be claimed through complaint. The Enforcement Director and the Enforcement Court automatically (ex officio) oversee the invalidity of these proceedings. The complaint about the lack of party capacity is indefinite. Although the Enforcement Director does not have the authority to automatically cancel the actions made according to the rules of proceeding law before seeing the decision for disclaimer of inheritance, the cancellation of these actions can be requested from the Enforcement Court by way of complaint. The Enforcement Court will be able to evaluate the ruling of the disclaimer of the inheritance taken before the proceeding and the consequences of these provisions (TCC 611) since it is the subject of the complaint.”[1]

“Actions carried out in violation of the prevailing provisions to protect the interests of the debtor, third parties and the public are contrary to public order. Complaints can be made at any time (until the enforcement proceedings are over) against these actions that are against public order. In this context, the proceedings of the Enforcement Director regarding the proceedings and executions contrary to the judgment are examined and decided upon at the Enforcement Court as an indefinite complaint.”[2]

4. Where and How to File an Application for Complaint?

Complaints are made to the enforcement courts. The competent enforcement court to which the application will be made is the enforcement court to which the enforcement office that made the complaint is affiliated. This authority is in the nature of final authority, and the complaint application made to another enforcement court will be rejected due to lack of jurisdiction.

The complaint can be made in writing or orally. The court carries out the oral application by recording it in the minutes.

There are also cases where the complaint is exceptionally made to the civil courts. If transactions such as the dissolution of partnership (elimination of joint ownership) or the administration are carried out in compulsory enforcement activity, the complaints arising from these issues should be directed to the civil courts of peace.

5. Actions to be Taken by the Court on a Complaint

While filing a complaint, different demands may be made from the court depending on the reasons for the complaint. The following requests may be requested from the enforcement court, and the court will make decisions accordingly as a result of its examination;

  • Cancellation of the action,
  • Correction of the action,
  • Ordering the action to be performed.

If the subject of the complaint is the enforcement manager’s failure to take action or impeding the execution, if the enforcement court deems the complaint application justified, it orders the enforcement manager to take this action. The bailiff is now obligated to take this action. Here, the enforcement court does not automatically perform this action in the place of the enforcement director, but only orders it to be done.

If the subject of the complaint is an action contrary to the law or concrete event, it may be requested to cancel or correct this action. If the enforcement court decides that the application is justified, it cancels or corrects the action.

Enforcement courts are not bound by their justifications, although they are bound by the demands of the parties when examining the complaint applications. To put it more clearly, the court may annul or correct the action that is the subject of the application, not for the reason stated by the parties in the application, but for any other reason.

Upon the complaint, the enforcement court can examine the file as well as conduct a hearing. If the enforcement court is to make a decision without a hearing, it should make its decision within 10 days, if it will make an examination with a hearing, within 1 month at the latest. Although the enforcement court is normally a court that makes limited examinations on documents, it can also make a decision by examining other evidences such as witnesses, experts, discovery in complaint applications.

6. Does the Complaint Application Suspend the Enforcement Proceeding?

Complaint application is not a process that automatically suspends enforcement proceedings like objection. Even if a complaint is filed, enforcement proceedings will continue to progress. However, if the enforcement court examining the complaint deems it necessary to halt the proceedings, it may decide to stop the proceedings upon the request of the parties or by itself.

7. Consequences of Approval or Rejection of the Application for Complaint

If the enforcement court, as a result of its examination, concludes that the complaint is not timely or the reasons for the complaint are not appropriate, it rejects the application. In case of rejection of the complaint, if the enforcement proceedings have been halted, it will continue.

In case of acceptance of the complaint, it is decided to cancel, correct or order the action subject to the complaint, depending on the request in the application. If the court decides to cancel the action, the action will be canceled as from the moment it is made, and all other actions based on the canceled action will be cancelled.

It is possible to appeal against some of the decisions of the enforcement court regarding the rejection or acceptance of the complaint.

”The provision in Article 365/1 of the Enforcement and Bankruptcy Law is as follows: ”The application for appeal is made after the legal period has elapsed, or if it is related to a decision that cannot be appealed, or the objection or rejection of the complaint due to abandonment, or a complaint that has expired, the request is rejected by the enforcement court in accordance with the relevant provisions of the Code of Civil Procedure.” The third paragraph of the same article includes the followings: ”The regional court of appeal does not reject the application, which has not been rejected even though it falls within the scope of the first paragraph, and directly makes a final decision.”
In the concrete case, the decision requested to be examined on appeal concerns the rejection of the irregular notification complaint due to the legal 7-day statute of limitations, and the aforementioned decision does not have the ability to appeal.
[3]

Conclusion

Complaints can be filed for the cancellation or correction of actions made by enforcement or bankruptcy officers that do not comply with the law, public order or concrete case. The application is being examined by the enforcement courts, and if the court deems it appropriate, it has a function that can halt the enforcement proceedings. It is recommended to seek professional legal assistance in order to determine whether the actions made by the bailiff are in compliance with the Law and to take action regarding this. This is a very important opportunity for the debtor to apply to this method, which can be effective until the suspension of the enforcement proceedings and the cancellation of the actions. It is important to do it on time and correctly.

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

Best Regards.

References

KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık.

PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık.

12nd Civil Chamber of the Supreme Court, 2021/5433 E., 2021/7155 K.

Supreme Court of Assembly of Civil Chambers, 2020/718 E., 2021/409 K.

Supreme Court of Assembly of Civil Chambers, dated 21.06.2000, 2000/12-1002 K.

[1]Supreme Court of Assembly of Civil Chambers, 2020/718 E., 2021/409 K.

[2]Supreme Court of Assembly of Civil Chambers, dated 21.06.2000, 2000/12-1002 K.

[3]12nd Civil Chamber of the Supreme Court, 2021/5433 E., 2021/7155 K.

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