In the Enforcement and Bankruptcy Law, the duration and procedure of complaints are limited in the proceedings through foreclosures specific to bills of exchange. In this context, it is beneficial to act in accordance with these ways and methods in order to obtain a valid result.
1 – Complaints for which a period of 5 days is stipulated in the follow-ups through foreclosure specific to bills of exchange:
Pursuant to Article 168/1 of the Enforcement and Bankruptcy Law, the enforcement office sends a payment order to the debtor in accordance with the principles specified in the law. In the procedure of this payment order sent, the debtor who thinks that there is a complaint in its content; According to the Notification Law, a complaint can be made to the Enforcement Court within five days of receiving the notification of the payment order.
It should be noted that this complaint does not stop the follow-up.
The subject of the complaint may be as follows:
a- The bill subject to the follow-up is not in the nature of foreign exchange,
b- The debtor status is not formed although the subject of the follow-up is a bill of exchange,
c- If the subject of the follow-up is a check; Complaints can be made about checks for similar reasons.
2- Complaints for which a period of 7 days is foreseen in the follow-ups through foreclosure specific to bills of exchange:
a- If the basis for the proceeding has not been given to the enforcement office,
b- If the payment order has been improperly served to the debtor (in such cases, a delayed appeal may also be applied)
c- If the creditor also detects an erroneous transaction in the proceeding, he may apply for a complaint.
3- Cases of indefinite complaints in the follow-ups through foreclosure specific to bills of exchange:
If the complaint is against public order; No time is required for filing the complaint. In this case, the benefit sought arises from the possibility that the transaction is contrary to public order and that the transaction will be null and void. The most important of these objections manifests itself with the claim of forgery. The debtor/signature is objected to with the allegation that the bill of exchange is fake, but if the enforcement manager refuses the request to stop the proceedings, the debtor may be granted an indefinite right to complain.
a- If the debt/signature is objected to by applying to the enforcement court in due time
b- A negative clearance lawsuit has been filed in the commercial court
c- C. If it is documented that a public action has been filed by the criminal court by the Prosecutor’s Office; enforcement proceedings will have to be suspended.
Turkish Supreme Court
Basis: 2017/ 4515
Decision: 2018 / 5708
Decision Date: 13.11.2018
The plaintiff’s attorney stated that the defendant made an enforcement proceeding against the plaintiff based on two years, that the plaintiff had to deposit the proceeds in the execution file under the threat of execution even though the plaintiff filed an objection to the… arguing that the plaintiff, under the threat of execution, demanded the defendant’s restitution, together with the legal interest of 6,500,00 TL deposited in the execution file, and sued.
Even though the case was rejected by the court because the statute of limitations in article 72/7 of the EBL has passed, the court’s reasoning is not appropriate since the conditions of this article were not met in the concrete case. In the follow-up carried out in a special way for bills of exchange, it is seen that the said person has paid the debt of the file, since the objection of the debtor does not stop the proceedings. After that, it was understood that the debtor’s signature objection was accepted with the decision of the enforcement court and the proceedings were stopped. In this case, since the conditions specified in Article 361 of the EBL have been met and the debtor has paid the money that should not be paid, he can request this amount from the creditor and in this follow-up file without any need for a judgment. (Y. 12.HD dated 15.06.2004 and 2014/11561 E. -2014/15261) Accordingly, after the decision rendered in the case of objection to signature against the payment order filed by the plaintiff debtor in the execution law court, after the finalization of the decision, Article 361 of the İİK. According to article 16/2 of the EBL, if he applies to the executive director and asks for the refund of the money taken from him, and the executive director does not accept this request, he must apply for an indefinite complaint in accordance with article 16/2 of the EBL. The judge must, ex officio, observe whether the conditions of the case exist in a case before him. One of the conditions for a positive lawsuit is that the plaintiff has a “legal interest” in bringing that lawsuit. A lawsuit that has no legal benefit for the plaintiff in its opening should be rejected due to the absence of the lawsuit condition. the plaintiff has a “legal interest” in bringing that case. A lawsuit that has no legal benefit for the plaintiff in its opening should be rejected due to the absence of the lawsuit condition. the plaintiff has a “legal interest” in bringing that case. A lawsuit that has no legal benefit for the plaintiff in its opening should be rejected due to the absence of the lawsuit condition.
19th Law Office
Basis: 2017/ 5505
Decision: 2018 / 5583
Decision Date: 07.11.2018
Complainant debtor’s application to the enforcement court; In the proceeding without judgment initiated by the creditor through general attachment, he claimed that the notification process regarding the payment order was unlawful and requested that the date of notification be corrected according to the date of learning.
10/1 of the Notification Law No. 7201. in the article; The notification is made at the last known address of the person to be served. So far; It is permissible to make a notification anywhere, provided that the person to whom the notification is made applies or accepts. 10/2 of the Notification Law. According to the article; “In case it is understood that the last known address is not suitable for notification or notification cannot be made, the address of the addressee’s settlement in the address registration system is considered as the last known address and the notification is made here.” 21/2 of the same Law. In accordance with the article; “The address shown is the address of the addressee in the address registration system, and even if the addressee has never resided at that address or has left that address permanently, the notification officer shall deliver the document, He delivers it to one of the members of the headman or council of elders of that place or to the chief or officers of the municipal police against signature and pastes the notice containing the address of the recipient on the door of the building at the indicated address. The date on which the notice is affixed to the door shall be deemed the date of notification.” In accordance with paragraph 8 of paragraph 1 of Article 23 of the Notification Law; “If the notification is made to the address in the address registration system, it must contain the relevant record”.
16/2 of the Regulation on the Implementation of the Notification Law. in the article; “If it is understood that the last known address is not suitable for notification or a notification cannot be made, the address of the addressee’s place of residence in the address registration system is accepted as the last known address and the notification is made here, and no further address search is made. In the notification envelope printed in color according to the second paragraph of Article 79, it is stated that the address is the address of the addressee’s place of residence in the address registration system, and the notification stating that the notification will be made to this address is included.
In the concrete case, the payment order issued on behalf of the debtor was first served to the known address of the debtor, upon the return of the notification, it was determined that this address was the origin address, and 21/2 of the TK was sent to the same address. Article 23/1-8 of the TK by the authority issuing the notice of notification, except for this annotation, where the phrase “mernis address” is written only at the beginning of the address in the notification document. and 16/2 of the Regulation. Within the scope of the article, it is stated that the address is the address of the addressee’s place of residence in the address registration system, and this address is given in 21/2 of the TK. In this case, the notification is not given in accordance with Article 23/1-8 of the TK. and 16/2 of the Notification Regulation. It is found to be illegal and contrary to the provisions of the law.
In that case, the court should decide to correct the date of notification pursuant to Article 32 of the Notification Law with the acceptance of the complaint of improper service, but it is wrong to make a written judgment.
CONCLUSION: With the acceptance of the debtor’s objections to the appeal, the court decision to be overturned for the reasons written above, pursuant to Articles 366 of the EBL and 428 of the HUMK, the refund of the pre-paid fee upon request, with the possibility of rectifying the decision within 10 days from the notification of the verdict, 26/ It was unanimously decided on 01/2018.
12th Civil Chamber
Decision: 2017 / 15435
Decision Date: 12.12.2017
COURT: Enforcement Civil Court
In the follow-up through bankruptcy specific to bills of exchange (example 12) initiated by the creditor against the debtor, it has been seen that the debtor’s application to the enforcement court has objected to the interest along with the statute of limitations related to the period before the proceedings were finalized, and the court examined the merits of the objections and decided to accept them.
In article 172 of the İİK, which regulates objections and complaints in bankruptcy proceedings for bills of exchange; “The debtor who wishes to object or complain to the payment order is obliged to notify all kinds of objections or complaints to the enforcement office, together with the reasons, with one more petition than the copy to be notified to the other party, within five days from the notification of the payment order. A copy of this petition is immediately notified to the creditor. It has been explained that the objection and complaint must be notified to the enforcement office within 5 days from the notification of the payment order (HGK dated 05/10/2012, 2012/12-310 E. 2012/653 K.).
In the concrete case; In the proceedings through bankruptcy specific to bills of exchange, the debtor has appealed to the court regarding the statute of limitations and interest.
In that case, while the objection should be rejected by the court with the above-mentioned reason, it is inaccurate to examine the merits of the matter and make a written judgment.
CONCLUSION: Upon the acceptance of the creditor’s objections to the appeal, the court’s decision to be overturned for the reasons written above, pursuant to Articles 366 of the EBL and 428 of the HUMK, the refund of the prepaid fee upon request, with the possibility of rectification within 10 days from the notification of the verdict, 12/ It was unanimously decided on 12/2017.