Is it Possible to Suspend or Postpone the Enforcement Proceeding With Judgement?

The debtor has a number of opportunities to halt the enforcement proceedings that have started, to prevent the proceeding and the attachment on the assets. The debtor objects to the payment order in order to halt an enforcement proceeding that has started as a enforcement proceeding ”WITHOUT JUDGEMENT”. With the objection made by the debtor, the enforcement proceedings stop automatically, and the creditor cannot continue transactions such as foreclosure and sale. The creditor files a lawsuit for the suspension or annulment of the debtor’s objection in order to continue the proceedings. However, if the creditor has initiated an enforcement proceeding ”WITH JUDGEMENT”, it will not be so easy for the debtor to stop it. In this case, the debtor must fulfill the conditions sought in the law and request the suspension or postponement of the proceeding. In this bulletin, we have focused on the procedures necessary for the suspension or postponement of the execution in the writ of execution process.

1.What is the Suspension of Enforcement Proceeding?

If the creditor has a “court decision”, she/he shall initiate an enforcement proceeding ”WITH JUDGEMENT”. The documents of the creditor in the enforcement with judgement constitue a high power of proof. If the creditor has one of the documents that are in the nature of a judgement, she/he can initiate an enforcement proceeding with these documents.[1] For example, settlements made before the court, notary documents in the form of regulations containing an unconditional pecuniary debt acknowledgement, consumer arbitration committee decisions, mediation or reconciliation documents are among the documents that are useful for initiating enforcement proceedings with judgement.[2] These documents are strong documents proving the creditor’s right. Therefore, when the creditor initiates enforcement proceedings with judgement, what the debtor can do is to appeal against the court decision at the Supreme Court  or the Regional Courts of Justice.

Execution proceedings do not stop with these objections, which we call an appeal.[3] While the case is heard again in the Supreme Court or Regional Courts of Justice, enforcement proceedings continue. In other words, although the debtor objects to the decision, an execution writ may be sent to the debtor due to this enforcement proceeding, and the debtor’s goods or salary may be seized. The debtor may have to pay money under the threat of execution even though she/he is not a debtor in a case where she/he will be justified in the Supreme Court or the Regional Court of Justice. To prevent this, the procedure for the suspension of execution must be fulfilled. In practice, it is possible for the debtor to stop the execution proceeding with a verdict, by applying for the suspension or postponement of the enforcement. In order for the debtor to stop the enforcement proceedings, it is possible to prove the existence of certain reasons with certain documents.

2. For which Decisions the Suspension of the Execution Can Be Requested?

Suspension of enforcement comes to the fore when a decision has been made by the court and this decision is turned into enforcement proceedings with judgement. In Turkish law, the decisions made by the court can be turned into enforcement proceedings as a rule. For this, there is no need to wait for the decision to be finalized by going through the Supreme Court or RCJ review. Therefore, while it is possible to demand suspension of enforcement for all decisions that can be enforced before they become final, it cannot be requested for decisions that cannot be enforced before they are finalized. In addition, if the court decision is final, that is, if an objection cannot be made to the Court of Cassation or the RCJ against this decision, a suspension request cannot be made for this decision. Again, it is not possible to request suspension regarding the payment of alimony.[4]

3. How to Apply for the Suspension of Enforcement?

The debtor’s objection to the decision at the Court of Cassation or the Regional Courts of Justice alone does not stop the enforcement proceedings. In order to stop the execution, the debtor shall;

  • First of all, object to the decision at the Supreme Court of Appeals or the Regional Court of Justice, depending on the subject and amount of the case, and in this objection, he/she should clearly request the suspension of enforcement.[5]In practice, this is called an appeal with a suspension of enforcement request. The Supreme Court or the Regional Court of Justice decides on the suspension of enforcement. However, the debtor must make a request for a suspension of enforcement in the petition of appeal.
  • After the debtor objects to the decision, he/she states that he/she has filed an objection at the court that is hearing the case, at the Supreme Court or the Regional Court of Justice, with a request for suspension of execution, takes a postscript and files a request for the enforcement file with this postscript. After the request for the execution file is filed together with the postscript, the debtor should ask the bailiff to give her/his time until the Supreme Court or the Regional Court of Justice decides on this issue.
  • In order to grant this period, the executive director will ask the debtor to provide a security equal to the entire loan and three months’ interest. If the debtor does not provide security, the bailiff will not grant this period. e. The debtor can present money, bank letter of guarantee or immovable as security, amounting to the entire amount of the receivable. If a real estate is to be shown as security, there should be no attachment on it. If the debtor benefits from legal aid, she/he is not required to provide security. If the guarantee shown to the enforcement office is movable pledge, stock share, bond or immovable pledge and bank surety, the debtor must obtain a decision from the enforcement court and submit it to the enforcement office, showing that this guarantee is accepted.[6] If the amount of guarantee is shown to cover the receivable, the attachment in excess of the loan must be removed. Below, the Supreme Court decision on this has summarized the issue.[7]

“According to article 36 of the EBL; If the debtor, who appeals the judgment, proves that the money or goods are deposited with official authority, or shows a movable pledge or stock share or bond or immovable pledge or a valid bank surety in the value of the money or goods that the enforcement court will accept, or if the debtor’s property to cover the money and goods is confiscated, a suitable period is given to the debtor by the bailiff to take a decision from the Supreme Court to postpone the enforcement. On the other hand, pursuant to Article 85 of the EBL, the debtor’s property and rights are seized in an amount sufficient for the creditor’s entire receivable, including principal, interest and expenses. Accordingly, if the entire receivable of the file is deposited with the enforcement office, the existing liens will become more than transcendent, and the creditor will have no legal benefit in the continuation of liens, so they must be removed. Even if the letter of guarantee submitted or the cash guarantee deposited in order to grant an extension by the enforcement directorate to take a postponement decision from the Supreme Court, it does not replace the payment, in the event that the security deposited by the debtor meets the enforcement proceeding file together with all its accessories as of the date of deposit, it is no doubt that the existing attachments will become transcendent and the continuation of attachments will not comply with the 85/last article of the EBL.
Since the debt of the file has been stored by submitting a letter of guarantee to the enforcement office in an amount that exceeds the amount of debt determined in the file account by the complainant, it must be accepted that the liens that have been placed before will become more than that.”

  • The bailiff grants the debtor an appropriate period of time to bring a stay of enforcement decision from the Supreme Court or the Regional Court of Justice, this period can be in the range of 60-90 days. If a decision is not made within this period, a new time may be granted.

3.1. In Cases Where It Is Decided to Suspend the Proceeding

As a result, the Supreme Court or the District Court of Justice may reject the debtor’s claim if they find it unjustified; If they find it rightful, they decide to suspend the execution. If it is decided to suspend the enforcement, the enforcement office delays the enforcement of the decision until the conclusion of the appeal examination. The creditor cannot take any action against the debtor during this period.

3.2. In Cases Where the Request for Suspension is Rejected

If, at the end of the appeal examination at the Supreme Court or the Regional Court of Justice, the regional court of appeal finds the debtor to be unjust and decides to reject the application or uphold the judgment, the decision to suspend the enforcement will be lifted automatically and the creditor may continue the enforcement proceedings. The creditor receives from the guarantee shown. If the guarantee does not meet the amount of the receivable, the debtor’s goods are seized and sold, and the payment is made to the creditor.[8]

A reminder; It is not possible to suspend the enforcement by presenting a guarantee in decisions regarding the payment of alimony.

4. What is the Postponement of Enforcement?

The debtor may request a suspension, together with an objection to the Supreme Court of Appeals or RCJ, against decisions that have not yet been reviewed by the Supreme Court or the Regional Court of Justice. In addition, there is another possibility that the debtor can apply; The debtor can only request the withdrawal or postponement of the enforcement proceedings against him from the Enforcement Courts due to certain reasons. The debtor can ask the Enforcement Court to postpone the execution based on only one of the following three reasons;[9]

  • Paying off the debt
  • When the debt expires
  • The debtor is given time to pay the debt.

If there are such cases, the proceedings initiated against the debtor are unfair, and the cancellation or postponement of the proceedings is possible with the decision of the Enforcement Court.

5. When Should a Request for a Postponement of Proceeding be Put Forward?

If the case has not been concluded yet, that is, if a judgement has not been given, it cannot be requested at this stage to postpone the execution. Because at this stage, the debtor must put forward and prove all her/his defenses in court within the case.[10]

If the debtor has ensured the expiration of the debt in the period after the judgment is rendered in the case, or if she/he has reconciled with the creditor and postponed the debt, she/he may request the postponement of the execution. It is necessary to analyze this period by dividing it into two as the period before the notification of the enforcement order to the debtor and the period after the notification of the enforcement order;

5.1. Postponement of Execution Prior to Notification of Enforcement Order

After the creditor wins the case, the debtor may have paid the debt or taken a time from the creditor to pay, that is, postponed the debt. Or, the credit may have been time-barred in the process until the creditor initiates proceedings against the debtor. Despite these, if the creditor still demands from the debtor a debt that has been paid, deferred or time-barred, the debtor should apply to the Enforcement Court and request the postponement of the execution.[11]

The debtor must apply to the Enforcement Court within 7 days from the notification of the enforcement order for the suspension of execution.[12]

5.1.2. How Can the Creditor Suspend or Postpone the Debt if the Debt is paid?

In order for the Enforcement Court to adjourn the execution, the debtor must prove that the debtor has paid the debt or that the debt has been terminated for any reason, with promissory notes issued or approved by the competent authorities, or with a promissory note before the enforcement office, enforcement court.[13] For example, notary bills, enforcement minutes can be used for proof. Ordinary promissory note whose signature has been acknowledged cannot be used for proof.[14] Documents admitted by the creditor before the court can be used.  Likewise, the debtor must prove with the same documents that the creditor give his/her time. If the creditor claims that the signature of the debtor does not belong to her/his on the bill submitted to the court, the debtor’s request to suspend the execution is rejected. Because the Enforcement Courts cannot examine the falsity of the signature. If the debtor’s request for a stay of execution is denied and the debtor has to pay money that she/he does not actually owe, she/he must file a replevin case.[15] In this case, by determining who the signature belongs to, the debtor will be able to get back the money she/he paid if she/he is right.

5.1.3. How to Postpone the Enforcement Proceedings If the Debt Is Timed-Barred?

The claim that the debt is time-barred can be calculated by examining the date in the court decision. The creditor also does not need to bring a document.[16] Court decisions must be followed up within 10 years; if not, they will become time-barred. Accordingly, the Enforcement Court will make the necessary calculations.

If the creditor claims that the statute of limitations has been suspended or terminated, she must prove this claim with official documents or a deed that the debtor does not deny her/his signature. If the creditor cannot prove this, the debt is deemed to have expired.

If the enforcement court decides to postpone the execution due to the statute of limitations, the creditor must file a lawsuit in the general courts within 7 days from this decision, depending on the relevance of the case. If the creditor does not file a lawsuit, it becomes certain that the debt is time-barred.[17]

5.2. Postponement of Enforcement After the Start of Enforcement Proceedings

The debtor may have paid her/his debt or postponed its payment at the stage after the execution proceeding with a judgment has started, that is, after the execution order has been sent to the debtor. Again, during this period, the debt may have expired.

However, if the creditor unjustly insists on continuing the enforcement proceedings against the debtor, the debtor can always request the enforcement of the enforcement court to be suspended.[18] There is no 7-day time limit here.[19]

The debtor has to make his/her claim in the enforcement court with official documents and promissory notes. The debtor must prove her/his claim with documents such as notary bills and enforcement minutes. If the debtor does not have such documents, the request for adjournment of execution is rejected.[20]

6. The Decision of the Enforcement Court and the Procedures to Be Followed Against the Decision

6.1. If the Request for Postponement of Enforcement is Accepted

If the enforcement court, upon its examination, concludes that the debtor has paid the debt or that the debt has expired for any other reason, it cancels the proceedings. Thus, the enforcement proceedings are terminated, and the creditor cannot continue the enforcement proceedings any longer. However, it is still possible for the creditor to sue in the general courts.[21]

If the enforcement court finds the claim that the debt is postponed justified, it does not cancel the proceedings, but postpones it. During the period given to the debtor, enforcement proceedings cease. If the debt is still not paid at the end of the period, the follow-up continues.

6.2. If the Request for Postponement of Enforcement is Rejected

If the debtor cannot prove her/his claim with official documents in the enforcement court, the request for the postponement of the execution is rejected. In this case, the debtor will have to pay the debt. If she/he does not pay, her/his goods are confiscated and sold, and are paid to the creditor.

The debtor can also appeal against this decision. The debtor may request the postponement of enforcement from the Supreme Court or RCJ by showing a guarantee. If a sufficient amount of the debtor’s property is confiscated, it is not necessary to provide additional security.[22]

As a result of the examination, if the Supreme Court or RCJ finds the debtor unjustified, the decision to postpone the enforcement is automatically lifted. The creditor collects the debt from the guarantee given by the debtor. If the security is not sufficient to pay the entire debt, the debtor’s properties are seized and sold, and given to the creditor.

At the end of the review, if the Supreme Court or RCJ finds the debtor justified, it decides to stay the execution. According to article 36 of the EBL, “In the event that the regional court of appeals rejects the application on the merits or the decision is upheld by the Supreme Court, the money subject to the security is paid to the creditor, without the need for any further action, upon the request of the creditor. Property and rights are converted into money by the enforcement office, depending on the type of property. The creditor of the writ has the right of priority over the collateral.If a decision is made other than the rejection of the application on the merits or the approval of the judgment, if the enforcement court also complies with the decision of the Supreme Court or RCJ, the guarantee is not returned to the debtor immediately, For the return of the guarantee, an application should be made to the court that hears the case. The court decides whether the security will be returned or not.[23]

Conclusions And Recommendations

Persons who think that enforcement proceedings have been unfairly carried out against them should perform the procedure of suspension or postponement of enforcement in order to avoid paying a money they do not owe under the threat of execution. We recommend that you seek professional legal support for your problems on this subject, which has timing and proof.

Best Regards.

References

[1] BULUR, Alper, İcra ve İflas Hukuku, Monopol Yayınları, Ankara, 2020, s.139.

2 BULUR, a.g.e., s.140;İİK m.38.

3 PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, 2015, İcra ve İflas Hukuku, Yetkin Yayınları, Ankara, s.322.

 4PEKCANITEZ/ATALAY/SUNGURTEKİN ÖZKAN/ÖZEKES, .a.g.e., s.322;HMK m.350;HMK m.367;İİK m. 36.

5ERCAN, İsmail, İcra ve İflas Hukuku, 2016, Themis Yayınları, Kuram Kitap Umuttepe Yyaınları, Kocaeli, s.234.

612nd Civil Chamber of the Supreme Court, E.2018/6293, K.2019/4022, T.11.03.2019; 12nd Civil Chamber of the Supreme Court,  E.2018/5707, K.2019/3144, T.27.02.2019.

7 ELB art. 36/6.

8 ELB art. 36/4.

9 ERCAN, a.g.e., s.237.

10ERCAN, .a.g.e., s.236.

11PEKCANITEZ/ATALAY/SUNGURTEKİN ÖZKAN/ÖZEKES, .a.g.e., s.327.

12ERCAN, a.g.e., s.237; 12nd Civil Chamber of the Supreme Court,  E. 2018/11363, K. 2018-13109, T. 10/12/2018.

13 12nd Civil Chamber of the Supreme Court, E.2020/6189, K.2020/8292, T.08.10.2020;PEKCANITEZ/ATALAY/SUNGURTEKİN ÖZKAN/ÖZEKES, .a.g.e., s.330; İİK m.33/2.

14 BULUR, a.g.e., s.147.

15ELB art. 72.

16 PEKCANITEZ/ATALAY/SUNGURTEKİN ÖZKAN/ÖZEKES, .a.g.e., s.330.;İİK m.33/a;İİK m.39).

17ELB art. 33a/II; PEKCANITEZ/ATALAY/SUNGURTEKİN ÖZKAN/ÖZEKES, .a.g.e., s.329.

 18 12nd Civil Chamber of the Supreme Court, E.2018/6364, K.2019/4639, T.19.03.2019.

19BULUR, a.g.e., s.147.

20BULUR, a.g.e., s.146.

21ERCAN, a.g.e., s.238.

22ERCAN, a.g.e., s.238-239.

23ELB art. 36/5.

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