Other than filing a lawsuit against the debtor who does not pay the debt, the only way that the creditor can resort is to issue enforcement proceedings. In some cases, by issuing enforcement proceedings, collection can be achieved in a shorter time and easier than the litigation process. In this way, enforcement proceedings without a judgment can be made for receivables that are not based on a court decision or a document in the form of a judgement. However, the creditor may first obtain a court decision by filing a lawsuit, and upon this decision, in case the debt is not paid by the debtor, she/he can issue enforcement proceedings. In this case, the proceeding to be initiated will be enforcement proceedings with a judgement.
What the creditor has to do is to apply to the enforcement office with a request for enforcement, whether she/he is going to pursue enforcement proceedings with or without a judgement. The starting point of all enforcement proceedings is the enforcement office and a request for enforcement.
In this bulletin, how to issue an enforcement proceeding, the elements that must be requested and the legal consequences of filing a proceeding request are discussed.
1. Request a Proceeding
If the creditor wishes to pursue an enforcement action against the debtor who has not paid the debt, she/he must apply to the enforcement office and request a proceeding. It is possible to make a proceeding request in writing or orally. In practice, a proceeding request is usually made by filling out the printed forms at the enforcement office, thus, possible shortcomings can be minimized. The proceeding request made verbally to the bailiff shall be recorded in a report by the clerk and this report shall be signed by the creditor or the bailiff/deputy director.
In some cases, it is possible to make a proceeding request in the electronic environment. For receivables arising from the subscription agreement, starting an electronic proceeding via UYAP is an example of this situation.
2. Information Required for Tracking Request
In the proceeding request, the required information must be specified by the creditor. In order for the proceeding request to be valid and a payment order to be issued accordingly, certain issues must be present in the proceeding request. These are; (EBL art.58)
Identity and address of the creditor: Name, surname of the creditor, Turkish identification number, Tax identification number and address must be written in the tracking request. The name of the legal representative, if any, must also be written. For the payment to be made on behalf of the creditor or her/his representative, the bank account information must also be included in the proceeding request.
Identity and address of the debtor: If known by the creditor, the name, surname, TR Identity No, Tax Identity No and address of the debtor must be written.
Credit Amount: The creditor has to write the amount of the credit right in Turkish Lira in the proceeding request. It is possible to request follow-up for both Turkish currency and foreign currency receivables. Article 99 of the Code of Obligations rules that;
“The debt, the subject of which is money, is paid in Country money. If it has been decided to pay in a currency other than the country currency, the debt may also be paid in the country currency at the current rate on the payment date, unless the contract contains the same payment or a statement that means this. In the event that the debt is not paid on the payment date, the creditor may request that the debt be paid in the same way or in the country’s currency at the current date of the due date or actual payment, unless it is determined in a currency other than the country’s currency and there is no exact payment or an expression that means this in the contract.” Therefore, the creditor may request that the foreign currency debt be paid in Turkish currency to be calculated over the exchange rate on the day of the maturity or proceeding request or on the actual payment day. Since an amount will be shown in Turkish currency in the payment order, this amount must be shown in TL in the proceeding request. In addition, the creditor must show in the proceeding request the exchange rate of the date of the claim.
If it is not a debt due to a promissory note or a promissory note, the reason for the debt: If the receivable placed in the enforcement proceeding is dependent on a year, the date and number of the deed and the summary of the deed must be written in the proceeding request, and the original or a certified copy of the deed must be submitted to the enforcement office during the proceeding request. If a proceeding is to be issued through foreclosure pertaining to bills of exchange, then the original of the bill must be submitted to the enforcement office together with the proceeding request. If the subject of the proceeding is not a debt-related debt, the reason for the debt must be shown in the proceeding request. For example, it is necessary to specify a reason such as the price of the goods sold, the rental price, etc.
Statement on which of the means of proceeding is chosen: According to this regulation, which is especially important for debtors subject to bankruptcy, it should be stated whether the creditor chose the way of attachment or bankruptcy.
Things to be stated about interest: If interest is to be requested for the receivable subject to the proceeding request, the interest rate and the date on which the interest starts to accrue must also be indicated in the proceeding request.
Signature of the creditor or his attorney: The creditor or his/her attorney must sign the proceeding request.
3. Fees and Expenses to be Paid When Issuing Enforcement Proceedings
When issuing enforcement proceedings, the creditor is required to pay a fixed application fee, which does not change according to the claim and whose amount is fixed and updated every year. This amount has been determined as TL 59.30 for 2021. In addition, the advance fee, which will be determined according to the amount of the receivable subject to the proceeding, must be paid. The advance fee is collected at the rate of five per thousand of the amount of the receivable requested with the proceeding request. In addition to the application fee and the advance fee, the necessary notification (post) expenses for the notifications to be made to the debtor or debtors must be paid.
4. Legal Consequences of Issuing a Proceeding
If the creditor requests a legal proceeding, the executive director must issue a payment order and send it to the debtor.
The date on which the proceeding request is made is the date that will be taken as a basis for participation in the seizure in the future. In order for the creditor to participate in the seizure placed on the debtor’s goods by another creditor who is a creditor from the same debtor, the relevant creditor must issue the proceedings before the creditor who places the attachment.
The final term is terminated upon request for proceeding.
With the follow-up request of the creditor to one of the several debtors, the final term will be cut against the other debtors.
The fact that a lawsuit has been filed for the same receivable does not constitute an obstacle to filing a lawsuit regarding that receivable. Here, there is no pending situation between the prosecution and the lawsuit. Both prosecution and litigation can be conducted at the same time.
The date on which the proceeding request is made is also important in terms of negative declaratory actions. Accordingly, if the negative declaratory action is filed after the proceeding request, as a rule, enforcement proceedings can no longer be halted.
If the debtor has not been in default before, default occurs with a proceeding request.
Conclusion
If the creditor prefers the enforcement method in order to obtain the right to claim, she/he must apply to the enforcement office and request a proceeding. In order for the proceeding request to be valid and a payment order to be issued based on this request, it must be made in the required form and in accordance with the procedure. The examination that the executive director can make in a proceeding request is limited to whether the request meets the conditions sought in the Law and regulation. The executive director cannot examine whether the person who comes to her/him with a proceeding request is really a creditor and whether the person she/he claims to be indebted is actually a debtor. Only upon a valid proceeding request, it issues a payment order and sends it to the debtor, thus initiating enforcement proceedings.
Although the issuance of enforcement proceedings is so easy, the proceeding process is not that easy and mostly requires the help of a specialist lawyer. The certainty of the deadlines in the enforcement law and the irreversible errors in the transactions to be made prevent the continuation and success of the enforcement proceedings. For this reason, it is recommended to get professional legal support for enforcement proceedings.
For more information on the subject, you can see other content on our site, and request legal assistance from the Solmaz Law and Consultancy team for detailed information and questions.
Best Regards.
References
KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, s.97-100.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, s.133-137.
Enforcement and Bankruptcy Law
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