The purpose of execution proceedings is to ensure that the debt that the debtor has not paid voluntarily is collected from the relevant debtor. For this purpose, a praecipe is served on the debtor to pay the debt. This is a kind of “pay your debt” notice to the debtor. If the debt is not paid despite the praecipe, the debtor’s goods are seized and sold following the claim of the creditor, and the money to be obtained from the sale is paid to the creditor for receivables. Seizure is the process of seizing the debtor’s property by the executive bodies for the purpose of paying pecuniary claims.
In this bulletin, we have explained the attachment request and attachment proceedings in general.
1. Attachments in General Execution Procedure
There are two different types of execution proceedings in Turkish law. These are execution proceedings with judgement and execution proceedings without judgement. Execution proceedings with judgement is a proceeding that can be applied for receivables related to a court decision or a similar document. In order to apply for proceeding without judgment, no document is required, but if the debt is related to a document such as a notes payable, check or bill, execution proceedings can be made without judgement. In execution proceedings without judgment, an order of payment is sent to the debtor upon the request of the creditor, while in execution proceedings with judgement, the debtor is notified of the enforcement order. Upon notification of the order of payment, the debtor can take action in 3 different ways;
- May pay off the requested debt following the payment order,
- May object the payment order within the time limit,
- If the debtor does not object to the payment order and does not pay the debt, she/he must declare the property for the attachment within the same period.
In order for the creditor to demand the seizure of the debtor’s properties in execution proceedings without judgment, the payment order sent to the debtor must be finalized. Since the debtor does not object to the execution order, such a process does not need to be completed. In the event that the execution order is not fulfilled, if the creditor wishes to continue the proceedings through attachment (because she/he may choose to proceed through bankruptcy if the required conditions are present), she/he may request the seizure of the debtor’s goods, just like in the execution without judgement. In our article, since the provisions regarding the execution proceeding without judgement are valid at the attachment stage of the execution with judgement, it is sufficient to only make explanations about the execution without judgement.
2. Attachment Request
If the debtor does not pay the debt despite the finalization of the payment order and therefore the proceeding, the next stage of the execution proceeding is the seizure of the debtor’s properties. The debtor’s property is seized by the executive bodies. However, the execution office cannot automatically initiate attachment proceedings. The creditor must demand the seizure of the debtor’s property from the execution office. (EBL art.78)
Upon the finalization of the payment order, the creditor orally or in writing requests the execution office to seize the debtor’s properties. If the creditor is represented by a proxy, the proxy may also request the attachment. The attachment request must be made within 1 year from the notification of the payment order to the debtor. In the calculation of the 1-year period, in the action for the annulment of the objection or the cancellation of the objection filed by the creditor upon the debtor’s objection to the payment order, the time elapsed between the application of these remedies and the finalization of the decision is not taken into account.
If the creditor does not request an attachment within 1 year, the proceeding file is cancelled. Here, the creditor may request an attachment on the same file by renewing the file at any time, as long as the statute of limitations does not expire, since the attachment proceeding is still open. In this case, there is no need to make another proceeding and notify the debtor of the payment order again. Only the request of the creditor to renew the file is notified to the debtor. In order for the creditor to renew the file, the fee must be repaid.
3. Seizure of Debtor’s Property
As a rule, the attachment process is carried out by the enforcement office where the proceeding is made. However, the authority of the enforcement office where the proceeding is carried out is limited only to the seizure of goods in its jurisdiction. If the goods to be seized are in a place other than the place where the enforcement office is located, the enforcement office of the place where the goods are located, which is the authorized enforcement office, is requested to seize the goods. This request is made by the enforcement office where the proceeding is made. The seizure process is carried out by the enforcement office of the place where the goods are located, upon request. However, it is possible for the liens made with a letter to be sent directly to certain persons or registries, such as garnishment, receivable lien, wage lien, and automobile lien, to be made by the enforcement office carrying out the proceeding. For example, it is sufficient to send a letter to the employer person or institution for wage lien, or for automobile lien, the attachment is concluded by a letter sent to the relevant registry.
The executive director must seize within 3 days after the attachment request is made (EBL art. 79). However, the attachment made after this period is also valid. It is possible to continue with the government liability as a result of the fault of the bailiff due to the late execution of the seizure without a reasonable justification.
The process of attachment varies according to the type of property to be seized. While the seizure of the goods registered in the registry is made only by sending a letter, the seizure of movables such as gold, silver and money is made by the bailiff by actually confiscating them. In the seizure of movable and immovable properties, the bailiff must keep a lien minute. In this minute, matters such as whether the debtor has assets that can be seized, what these goods are, if any, and whether the seized goods are sufficient to meet the receivable are written. The seizure of a property is determined after checking the minutes. Even if the property that is not written in the minute is actually seized, the lien does not occur. Here, the proving document is the lien minute.
The bailiff will personally assess that whether the property can be seized, and if so, how much is the value of this property. If necessary, the bailiff can get expert help in this regard. It is possible to object to the valuation made by the bailiff.
4. Right to Use Force of the Bailiff During the Attachment Process
While the bailiff seizes, he/she can open the locked places. If the bailiff finds out that the debtor is hiding gold, silver, money, valuable papers or other valuables on him/her, the bailiff can take them by force against the debtor. (EBL article 80). The bailiff may request the debtor’s wallet, confiscate money, and confiscate bank cards and bank accounts. In the event of a written request, it is obligatory for the law enforcement officers to assist the bailiff during these procedures and to follow the orders.
5. Does the Debtor or Creditor Have to Be Present During the Seizure?
The attachment process is carried out by the enforcement office. There is no need for the creditor or debtor to be present. Even the notification of the lien minute to the creditor or debtor who is not present during the seizure is not obligatory. However, the enforcement office sends a letter known as the “103 invitation letter” to the creditor and debtor for them to examine the lien minute. The person who receives the 103 invitation letter has 3 days to review. Even if the 103 invitation letter is not sent, the seizure is valid. The creditor may want to sell the properties before receiving this invitation letter, but it is not possible to sell the goods before this invitation is notified to the debtor.
Conclusion
The debtor’s property, which does not pay the debt despite the execution proceedings, is seized and sold upon the demand of the creditor, and the creditor’s pecuniary claim is paid. In this process, it is important to make the necessary requests in a timely manner in order to conclude the execution proceedings in a short time. Detection of irregularities in the attachment process and complaints are also important in terms of protecting the rights of the debtor and creditor.
For more information about seizures, you can see other content on our site and contact our team for more information and advice.
Best Regards.
Solmaz Law and Consultancy Team.
References
KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, p.160-163.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, p.196-200.
The Enforcement and Bankruptcy Law.
Leave a Reply
You must be logged in to post a comment.