Enforcement Notices And Inadequacy of Notice

A notification is made by the competent authorities in writing or through an announcement, in order to inform the relevant person of the legal proceedings. In this way, it is ensured that the person who is the addressee of the legal action has information about the action and takes the necessary actions. In order for the actions taken to bear legal consequences, the relevant parties must be duly notified.

Notification is very important especially in enforcement proceedings. An inadequacy at the notification stage may result in the cancellation of all actions based on this notification. For this reason, if it is determined that the notification process is not duly performed, the person concerned will have to take legal action.

In this bulletin, we have explained how a duly notification should be made and what legal remedies can be taken in case of inadequacy of notice.

1. What Rules Govern Notification in Enforcement Proceedings?

The rules to be followed in notifications in enforcement proceedings are regulated in the Enforcement and Bankruptcy Law and the Notification Law. In Articles 21 and 57 of the Enforcement and Bankruptcy Law, it is stated that the regulations in the Notification Law will be valid in the notifications to be made by the enforcement offices to the related parties.

In addition to these two Laws, the regulations in the Regulation on the Implementation of the Notification Law, Electronic Notification Regulation, Enforcement and Bankruptcy Law Regulation are also able to be implemented in enforcement notifications.

2. How to Make a Duly Notification?

According to the Notification Law (NL), the notification is sent to the concerned person at the last known address. 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 settlement in the address registration system is considered as the last known address and the notification is sent here. If the addressee does not have an address in the address registration system, the address of the addressee is deemed unknown, and the notification is sent after the research to be conducted.

Although the rule is to make the notification to the relevant person at the last known address, it is possible and valid to make a notification outside this address with the application or acceptance of the person who will receive the notification.

If the person to whom the notification will be made is not found at her/his address, the notification is made to the people living in the same residence as her/his or to one of her/his servants (NL art.16). With this provision, which aims at facilitating the notification process, a solution is foreseen in case the addressee is not at the address at the time of notification.  However, in the notification to be made in this way, it must be stated that the person receiving the notification and the addressee of the notification live under the same roof. Otherwise, the notification will be inadequate.

Those who constantly practice their profession or art in a certain place, if they are not in that place, the notification is made to one of their permanent officers or employees in the same place (NL art. 17).

If the person to be notified is located in a place such as a hotel, hospital, treatment or resting house, factory, school, student dormitory where one cannot freely enter or where it is not possible to find the person being sought easily, the person who administers the place or the supervisor of the section where the addressee is located ensures that the notification is made. By these, it is ensured that the addressee is found immediately. If this is not possible, the notification is made to them (NL art.18).

Notifications to legal entities should be made to their authorized representatives. If the number of authorized representatives is more than one, it is made only for one of them (NL art.12).

If the persons to whom the notification will be made on behalf of the legal entities are not present during the working hours for any reason or are unable to receive the documents in person at that time, the notification is made to one of the officers or employees present there (NL art.13).

In case the execution proceedings are followed by a proxy, the notification must be made to the attorney (NL art.11). The notification made to the family is invalid.

If the person to whom the notification will be made, or any of the persons to whom the notification can be made according to the above articles, is not present at the address indicated or refuses to receive the notification, the notification officer delivers the document to be served to one of the headmen or a member of the council of elders or to the chief or officers of the municipal police in return for signature, and in addition to sticking the notice containing the address of the delivery recipient on the door of the building at the address shown, it is also notified to one of the nearest neighbors, if any, to the manager or the doorman, to inform the person to be notified of the situation in case of absence at the address. The date the notice is affixed to the door is considered the date of notification (NL art.21).

The address shown is the address of the addressee in the address registration system, even if the addressee has never lived at that address or has left that address permanently, the notification officer delivers the documents to be served to one of the headmen or a member of the council of elders, or to the chief or officers of the municipal police, in return for signature, and pastes the notice containing the address of the recipient on the door of the building at the indicated address. The date the notice is affixed to the door is considered the date of notification (NL art.21).

The person who wishes to be notified by giving an electronic address suitable for notification has been provided with the opportunity to be notified electronically. Electronic notifications are required for joint stock, limited and limited partnership companies. In the event that electronic notification cannot be made in this way for a compulsory reason, the notification is made by other methods specified in the Notification Law.

What to do if the address of the person to be notified has changed is shown in Article 35 of the Notification Law. “If a person who has been notified or to that person’s address in accordance with the procedures set forth by law changes her/his address, she/he is obliged to immediately notify the authority that made the notification. In this case, subsequent notifications will be made to the new address. If the person who changed his/her address does not notify a new one and the place of residence cannot be determined in the address registration system, a copy of the document to be notified is hung on the door of the building belonging to the old address and the date of hanging is considered the date of notification. After that, the notifications sent to the old address are deemed to have been made to the addressee.

Even if no notification has been made before, the addresses in the official records are taken as basis for legal entities and the provisions of this article are applied” (NL art.35).

3. inadequacy of Notice and Cases of inadequacy of Notice

inadequacy of Notice is when the notification process is not in accordance with the rules and procedures specified in the Law. In case of an inadequate notification, the notification is not automatically deemed invalid. Although the notification is inadequate, if the addressee has learned about this notification, the notification is considered valid. The date specified by the person who will receive the notification is accepted as the notification date. (NL art.32/II; Notification Law Regulation art.53/II). Whether the addressee learned about the inadequate notification and, if so, the date of it is determined according to the statement of the addressee. The opposite of the statement of the addressee on this matter cannot be claimed and proven. However, the point to be considered here is that the addressee has entered into transactions that indicate that she/he was aware of the notification before the date she declared. In this case, if a complaint is made regarding the inadequate notification, the court may accept the date of notification as the date of notification, not the date of declaration, according to the principles of objective goodwill.

As an example of inadequacy of notice cases;

  • Notification made to an employee who is not authorized by the legal entity,
  • Notification made to a person who does not live under the same roof,
  • Giving the notification document to the neighbor
  • Cases such as a notification made to a child younger than 15 years of age can be given as an example.

4. Complaint Procedure in Case of Inadequate Notifice

In enforcement proceedings, the deadlines generally start to run from the date of notification. For this reason, if an inadequate notification has been made, the addressee will have to take action regarding this inadequacy or defect and apply to correct the date of notification. Otherwise, the period starting with the inadequate notification may be missed. Even if there is no problem in terms of time, transactions made on the basis of inadequate notification are not legally sound. It is possible to cancel the notification and related transactions upon the application of the addressee. For example, if the payment order has not been duly notified to the addressee, all transactions based on it, such as foreclosures and sales, will also have to be cancelled.

The addressee, who thinks that the notification is inadequate, should apply to the enforcement court within 7 days. However, the point to be noted here is that if the person concerned applies for a complaint, she will be deemed to have learned of the notification at the latest on the date of the complaint. Therefore, on this date, the inadequate notification will turn into a valid notification, and the periods that should start with the notification will start to run from the date of the complaint.  For this reason, together with the claim of inadequacy of the notification, the addressee must take other objections and actions, if any.

Another issue is that it is not necessary to make a delayed objection in case of an inadequate notification. Because, in case of inadequate notification, there is no need to resort to this method, since the objection period has not passed yet.  On the date when the addressee declares that he/she has learned about the inadequate notification, the periods required to start with the notification will begin and as of this date, the addressee shall be deemed to have started the normal objection and complaint process in due time. If the court considers that the notification is inadequate, it will only fix the day of the notification and will not cancel the notification.

The cases of inadequatenotification and the decisions taken in this regard are given below with examples from the case law of the Court of Cassation;

12nd Civil Chamber of the Supreme Court, 2021/2696 E., 2021/7081 K.

“According to the established jurisprudence of our office, if the notification sent on behalf of legal entities to their addresses in the trade registry is made in accordance with Article 21/1 of the Notification Law, there is no need for the notification officer to investigate the conditions in Articles 30 and 31 of the Notification Regulation. Because, if the addressee is not at the address, it is obligatory for real persons to investigate the reason for this and to determine whether he/she will return to the address after the delivery time, and the absence of such an investigation due to the title and nature of the legal persons does not result in the inadequacy of the notification. However, in case of notification according to Article 21/1 of the Law, the notification officer attaches the notice containing the address of the person who delivered the notification document to the door of the building at the address shown, in case of not being present at the address, the notification officer also notifies one of the closest neighbors, if any, the manager or the doorman, to inform the person to be notified of the situation.


In the concrete case, the debtor …. to the trade registry address of the payment order, pursuant to Article 21/1 of NL No. 7201, it was seen that the notice was notified with an annotation stating that “the address of the addressee was asked from the neighboring 47/A Unit Teknik Co. Ltd. Co.,  Where it is temporarily closed,  the document was
notified to the headman of the neighbourhood, the paper no. 2 was attached to the door of the addressee, and the nearest
neighbour was informed”, that there is no name of the neighbor to whom the
notification is made, the notification is in violation of Article 21/1 of the NL. However, it is unnecessary to investigate the reason for not being present at the address in case the company is closed, the obligation to inform the neighbor continues, and that although it has been stated in the practices of our office that all the conditions of Article 21/1 of the NL will not be strictly enforced, this will not remove the obligation to notify, and that the name of the notified neighbor should be duly recorded in the report.


Accordingly, since the name of the neighbor who was informed is not written in the
notification subject to the complaint, it is understood that the notification process is formally contrary to Article 21/1 of the Notification Law and therefore inadequate.
On the other hand, pursuant to Article 32 of the NL, even if the
notification is made in violation of the procedure, if the addressee has been used to the notification, it is considered valid. The date declared by the addressee is accepted as the notification date.

In that case, the court should accept the complaint of inadequate notice and, pursuant to Article 32 of the NL, it should be decided to correct the notification date according to the learning date, but it is wrong to make a written judgment.”[1]

12nd Civil Chamber of the Supreme Court, 2021/5401 E., 2021/6915 K.

“In the debtor’s petition; It is seen that the address is the registered address and address of residence, that he/she resides there on the date of notification, that the notification should not be returned, therefore, a notification cannot be issued according to Article 21/2 of the NL based on this returned notification.
In the concrete case, it is understood that a notification has been issued to the debtor’s registered address at  … and that the notification was returned with the annotation “Return to the exit authority since the addressee is not recognized from the address shown, since there is no headman’s record,” but according to Article 21/1 of the Law No. 7201, the notification was made without the name of the neighbor who stated that the addressee was not recognized at the address in the
notification. The first notification returned as such; Since it is against the provisions of Article 21/1 of the Law No. 7201 and Article 30 of the Regulation and it is inadequate, it cannot be taken as a basis for the application of Article 21/2 of the N.L.
Pursuant to article 127 of the EBL, a copy of the sales announcement must be notified to the debtor in real estate sales. Failure to notify the debtor of the sales announcement or inadequate notification is the reason for the termination of the tender in itself.

12nd Civil Chamber of the Supreme Court, 2021/1416 E., 2021/6897 K.

 

“The complaint regarding the inadequacy of the payment order notification process must be made to the enforcement court within seven days from the date of learning of the inadequate notification process in accordance with Article 16/1 of the EBL.
Pursuant to Article 32 of the Notification Law No. 7201, if the notification is inadequate, if the addressee is aware of the notification, it is considered valid. The date declared by the addressee is accepted as the date of notification unless there is written evidence to the contrary.


Because the
notification date of the enforcement order is important in time-bound transactions, considering that the complainant has a legal interest in requesting the correction of the notification date of the enforcement order, in the event that the complaint issued by the court on behalf of the complainant regarding the inadequateity of the enforcement order notification process is examined and it is concluded that the notification is inadequate, While the notification date should be corrected in accordance with Article 32 of the N.L., it is inaccurate to make a written judgment by ignoring this issue.”

Conclusion

In order for the notification to have legal consequences, it must be made in accordance with the rules. Notifications made in violation of the law and procedure are called inadequate notifications. However, the inadequate notification is not automatically considered invalid, and if the addressee of the notification is informed in a way, the notification is considered valid. In this case, the date of notification will be accepted as the date declared by the addressee and the periods will start to run from this date. In case of inadequate notification, a complaint may be made to the enforcement court to correct the notification date or cancel the notification. In order to detect these inadequateities and to prevent loss of rights, it is recommended to get professional legal support in order to make the necessary applications in a timely manner.

Best Regards.

Solmaz Law and Consultancy Team.

References

KÜÇÜK, Alper Tunga, “İcra ve İflas Hukukunda Tebligata İlişkin Düzenlemeler”, İÜHFM, C. LXXIV, S. 1, yıl:2016, s.305-329.

SÜPHANDAĞ, Yavuz, (2015), İcra ve İflas Hukukunda Uygulamalar, Bilge Yayınevi, 9. Baskı, s.283-285.

12nd Civil Chamber of the Supreme Court, 2021/2696 E., 2021/7081 K.

12nd Civil Chamber of the Supreme Court, 2021/5401 E., 2021/6915 K.

12nd Civil Chamber of the Supreme Court, 2021/1416 E., 2021/6897 K.

Leave a Reply

Your email address will not be published. Required fields are marked *