In enforcement law, the objection period to the payment order in the general enforcement proceedings without a judgment has been determined as 7 days from the notification of the payment order. This period is clear and final, and objections made after 7 days will not be considered. However, in the presence of certain conditions, objections made after the expiry of the 7-day period are also accepted.
In this bulletin, we focused on the conditions under which objections to the payment order will be accepted after the expiry of the objection period.
1. What is a Delayed Objection?
The objection that can be made after missing the 7 or 5 days (the objection period is 5 days in the proceeding through attachment pertaining to bills of exchange) stipulated in the Law for objection to the payment order is called delayed objection. A delayed objection is an objection made after the normal objection period has elapsed and does not have the same consequences as an objection directly to the payment order. For example, while the objection made within the time limit suspends the enforcement proceedings, the delayed objection cannot have such an effect directly. Enforcement proceeding continues despite the delayed objection. Likewise, while the normal objection is reported to the enforcement office, the delayed objection must be made to the enforcement court. This objection, which differs from the objection made in due time, can be accepted as valid by the enforcement court, depending on certain conditions. In other words, every objection made even though the deadline has passed is not a delayed objection.
2. Terms of Validity of the Delayed Objection
Certain conditions must be met in order for a delayed objection.
- The person receiving the notification of the payment order must not have been able to object to this payment order in due time due to an excuse (obstacle) without her/his own fault. To put it more clearly, it is required that the debtor could not object to the payment order due to compelling reasons that occurred completely out of her/his will, without any negligence or fault of the debtor. These reasons may be involuntary reasons such as the debtor’s inability to object due to a serious illness during the notification of the payment order, not being informed of the notification in due time due to a long trip during the notification, or the debtor’s failure to object due to a natural disaster. The enforcement court will decide on the validity of the debtor’s excuse.
- A delayed objection must be made on time. Delayed objection must be made within 3 days from the disappearance of the obstacle (EBL art.65/II). However, in any case, a delayed objection can be made until the seized goods are sold. A delayed objection cannot be made after the sale has taken place.
3. How to Make a Delayed Objection?
Delayed objection is made with a petition or verbally to the enforcement court. The debtor must specify two issues in the objection;
- The reason for not being able to object to the payment order on time and the proofs related to it (all kinds of evidence can be shown; doctor’s report, official records, passport information, etc.)
- Statement of objection to the payment order
While making a delayed objection, the debtor must submit to the court the justification for not being able to object to the payment order within the legal time limit, together with the evidence. The enforcement court, with a hearing examination on this petition and its annexes, will reach a conclusion as to whether the debtor has missed the deadline without fault. The expenses related to the hearing to be held while the delayed objection is made must also be paid by the debtor.
4. Consequences of a Delayed Objection
Upon the delayed objection, the enforcement court will decide to accept or reject the excuse put forward by the debtor as a result of its examination. If the court decides to accept the excuse, the enforcement proceedings will be halted with the delayed objection, just like in the objection made on time. In order to continue the pending enforcement proceedings, the creditor must take action. It is possible for the creditor to apply for one of the ways of suspension the objection or withdrawal of appeal. The point to be noted here is that if the debtor’s property is seized before the delayed objection, the creditor must apply for the suspension of the objection or the withdrawal of appeal within 7 days from the acceptance of the delayed objection in order to prevent this attachment from being released. However, this 7-day period is only the time to take action so that the liens are not released. Otherwise, the creditor still has the right to apply for the withdrawal of appeal within a period of 6 months and to file a lawsuit for the annulment of the objection within a period of 1 year.
If the court does not accept the excuse, the delayed objection will not be accepted and will not lead to the desired result for the debtor. Enforcement proceedings continue.
5. Difference between Delayed Objection and Unlawful Notification
In practice, the actions to be taken on the unlawful notification and the delayed objection can be confused with each other. In the delayed objection, there is a payment order duly notified to the debtor party. However, the debtor could not be informed of this notification in time for a reason not arising from him/her, and as a result, she/he could not make an objection in time. With the notification duly made here, the period to object to the payment order started to run, but this period was missed by the debtor.
The objection period has not yet started against the payment order that has been served illegally. For this reason, if there is an unlawful notification, the debtor does not need to apply for a delayed objection. Because, in unlawful notification, the date on which the payment order is served is considered as the date on which the debtor notifies that he/she is aware of the payment order. Therefore, the period of objection of the debtor to the payment order will start to run from the date the debtor declares that she/he has learned about this notification. In case of unlawful notification, it is necessary and sufficient to make a normal objection or complaint, not a delayed objection. The complaint can be made regarding the correction of the notification date as the learning date, upon the detection of the unlawful notification. With the complaint, it can be requested to cancel the illegal notification and to halt the proceeding.
The complaint regarding the unlawful notification must be made to the enforcement court within 7 days from the date on which the debtor is aware of the unlawful notification. However, the point to be noted here is that if the transactions made on the basis of illegal notification are related to public order, there is no complaint period limited to 7 days.This is an indefinite reason for complaint.
In summary, while the objection period has passed in the delayed objection, it is possible to apply to the complaint procedure or the normal objection procedure in the case of unlawful notification, since the objection period has not expired yet. Below we share a Supreme Court decision on this issue as an example;
“In the execution proceeding without judgment issued by the creditor through general attachment; It has been seen that the delayed objection was dismissed due to the statute of limitations and the decision of the first instance court was annulled on the grounds that the delayed objection was dismissed due to the statute of limitations considering that in the debtor’s application to the enforcement court, he requested that the notification date be corrected as the learning date, stating that the notification was illegal, claiming that he was abroad on 11.10.2019 when the payment order was served, that he learned about the proceeding from the e-government on 19.11.2019, but returned to the country on 21.11.2019; and by the court, It was decided that the complaint was rejected on the ground that the notification was in compliance with the procedure and the law, and the application of the debtor’s application was considered delayed objection by the Regional Court of Justice upon the objection against the decision of the first-instance court, but since the debtor did not object within 3 days from the date the notification was learned
Article 65 of the EBL (Amended: 18/2/ 1965 – 538/35 Art.); “If the debtor could not object in due time due to an obstacle without fault, he/she may object until the liquidation process is completed.
However, it is ruled that ” the debtor is obliged to declare the objections and reasons and the basis, together with the evidence showing the excuse, within three days from the day the obstacle is lifted…”
In order for the aforementioned provision to be enforced, the notification to the debtor must have been duly made, but the addressee must not have been able to object in due time due to an obstacle not caused by the debtor. In other words, the prerequisite for a delayed objection is the existence of a duly notification.
In the concrete case, it has been understood that the notification sent to the address of …. Mahallesi 60023 Sokak No:32/1 …., which is the known address of the addressee, was returned because the debtor has moved according to the statement of the neighbouring E.K., Secondly, it has been understood that a notification was sent to the address of … Mahallesi 60023 Sokak No: 32/1, which is the address of the debtor in AKS, and this notification was also returned, with the mention that the addressee was abroad and by giving the necessary annotation to his/her address in the address registration system, it has been understood that the T.K. has been duly notified in accordance with 21/2.
According to the article 65/2 of the ELB; “However, the debtor is obliged to notify the objection and reasons and the basis, together with the evidences showing the excuse, within three days from the day the obstacle is lifted, and to pay the fees and expenses related to the hearing to be held for the next paragraph.”
In this case, since the debtor’s delayed objections were reported to the enforcement court within three days on 25.11.2019 as of 21.11.2019, when the obstacle was lifted and he/she returned from abroad, the Regional Court of Justice’s rejection of the delayed objection, while the merits of the delayed objection should have been examined, was inaccurate and necessitated reversal.”[1]
Conclusion
In enforcement law, the periods stipulated in the Law for the parties are final and have final term. If the necessary action is not taken within these periods, the person concerned becomes unable to exercise this right. Delayed objection can be seen as one of the exceptions to this situation. The debtor, who cannot object to the payment order within the legal period, is given the right to object with an opportunity called delayed objection. However, in all cases, it is not possible to make a delayed objection after the deadline, and the conditions sought in the Law must be fulfilled in this regard.
For more detailed information and advice on this issue, you can contact the Solmaz Legal and Consulting team.
Best Regards.
References
KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, s.109-113.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, s.146.
12nd Civil Chamber of the Supreme Court, 2020/2879 E., 2020/10770 K.
Enforcement and Bankruptcy Law
[1]12nd Civil Chamber of the Supreme Court, 2020/2879 E., 2020/10770 K.
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