The person to whom the payment order has been served may not want to pay the debt included in the payment order for any reason. For example, if the debtor thinks that the debt does not belong to him/her, if he/her thinks that the signature on the bill communicated to him/her with the payment order does not belong to him/her, if he/she has paid the debt before, if an enforcement proceeding has been initiated for a debt that has not yet come due or a debt that has become obsolete, the person receiving the notification of the payment order may appeal to avoid paying this debt. In our law, the objections of the debtor to the payment order are divided into two groups. One of these is an objection to the debt on the payment order, and the other is an objection to the signature on the bill. All other objections except the objection to signature are considered as objections to the debt. The rules and consequences of objection to signature and objection to debt are different from each other.
In this bulletin, we have examined the signature objection of the debtor, who thinks that he/she has not signed the debt as debtor in the deed that was notified together with the payment order, in other words, that the signature on the deed does not belong to him/her, and its consequences.
İçindekiler
1. To Which Signatures on the Bills Can Be Objected?
It is possible for the person exposed to enforcement proceedings regarding the debt arising from a deed to object to the signature on the deed. However, it is not possible to deny the signature under each bill with the procedure of objection to the payment order. Only the signature on the so-called ordinary bills can be denied through objection. However, it is out of question to deny the signature in a notarized bill in this way. Again, no objection can be made to the signature of the debtor, even in debts based on a receipt or document duly issued within the jurisdiction of official offices or competent authorities. In such cases, a separate lawsuit must be filed for the forgery of the bill and a court decision must be taken regarding the forgery (HMK m.208/4).
2. How Should the Declaration of Objection to Signature Be Made?
If the party, who is the addressee of the payment order and is positioned as the debtor during the proceeding process, claims that the signature on the bill does not belong to him/her, the signature belongs to someone else, and therefore has no relation with the debt in the bill, he/she must make an objection to the signature in accordance with the procedure. Objection to signature must be made separately and clearly. In the objection made, it must be clearly stated that the objection to the signature has been made. For example, phrases such as “the signature on the bill does not belong to me, I object”, “I object to the signature”, “the signature is fake”, “I deny the signature on the bill” are expressions that clearly indicate that the objection made is an objection to the signature. If the debtor does not expressly object to the signature in his/her objection, only his/her objection will be considered as an objection to the debt and the debtor will be deemed to have accepted that the signature belongs to her/him. After this point, it is no longer possible to object to the signature under the bill. (EBL art.62). Now the debtor can only put forward the reasons for objection to the debt, which can be understood from the text of the bill.
The debtor can only object to the signature, or she/he can object to the debt together with the signature objection. There is no obstacle to appeal on both issues. However, objections to debt must be in harmony with objections to signature. In other words, objections to signature and objections to debt must be in logical consistency with each other. For example, both objections claiming that the signature does not belong to her/him and the objection that the debt is a final term can be put forward together.
3. Duration of Objection to Signature
Signature objection must be made within 7 days from the notification of the payment order.
4. To Where Is the Objection to the Signature Made?
The objection to the signature must be made to the enforcement office. As a rule, the objection must be made to the enforcement office that sent the payment order. It is possible to submit an objection to another enforcement office other than the one that sent the payment order, that is, the enforcement office where the proceeding is made. In this case, the objection made to the relevant enforcement office is sent by collecting the necessary postal expenses from the person making the objection.
5. What are the Consequences of Objection to Signature?
In case of objection to the signature, the proceeding stops. In order for the creditor to continue the pending proceedings, the creditor will have to apply for the suspension of the objection in the enforcement court. The creditor, who has applied for the suspension of the objection, does not have the right to demand the continuation of the proceedings; however, the creditor may request a provisional attachment on the debtor’s property. The debtor has to file a lawsuit, called the debt relief suit, within 7 days against the creditor who applies for the provisional attachment of the objection. If the debtor files this lawsuit, the proceedings will continue until the conclusion of this case. If the debtor does not file a lawsuit to get rid of debt in due time, the creditor may demand the continuation of the proceedings and the seizure and sale of the debtor’s goods. Likewise, if the debtor loses the quittance of debt, the temporary attachment turns into a final attachment and the sale of the debtor’s goods can be requested by continuing the proceedings.
Another option is for the creditor to file a lawsuit for the withdrawal objection. This lawsuit is filed in the general courts, not the execution court.
6. Suspension of the Objection
The creditor party has to take action again in order to continue the proceedings, which stopped with the objection of the debtor, and to request the seizure of the debtor’s properties. In order to eliminate the objection to the signature, the creditor may apply to the enforcement court and request the suspension of the objection. This request must be made within 6 months from the notification of the objection by the creditor.
In the procedure for the suspension of the objection, the enforcement court examines the signature. In order not to waste time, the creditor may also request the debtor’s comparable signatures to be brought from the enforcement office immediately upon objection to the signature.
In the signature examination, the court first listens to the parties, then decides on the repentance of the party who denies the signature, and tries to reach a conclusion by comparing the signatures with other signatures suitable for comparison. If she/he cannot come to a conclusion, she/he has an expert examination and examines whether the signature belongs to the objector.
In the enforcement court, this trial is held with hearings and according to the simple trial procedure. The debtor must be present at the hearing. If the debtor is not present at the hearing without an excuse, a suspension of the objection is made without any further examination. At the same time, the debtor is sentenced to a fine of 10 percent of the amount in the deed whose signature the debtor denies.
If the objection is suspended, the creditor may request the seizure of the debtor’s assets. The debtor is obliged to declare the property within 3 days from the notification of the decision for the suspension of the objection. The debtor may file a lawsuit for getting rid of debt within 7 days from the notification or annulment of the decision to stop the proceedings, to prevent the suspension from turning into a final annulment and to prevent the sale of the goods. If the debtor does not file this lawsuit within 7 days, the decision for the suspension of the objection and the attachment becomes final. Depending on the situation that the debtor can do after that, it is to open a negative declaratory action or a replevin case.
Conclusion
In the face of the payment order sent within the framework of the execution proceeding initiated regarding the debt based on a common deed, the person receiving the notification of this payment order may put forward his objections to the signature on the deed and have the proceeding stopped. The person who thinks that the signature on the deed does not belong to her/him must clearly state her/his objections to the signature in due time. Otherwise, she/he will be deemed to have accepted that the signature belongs to her/him and she/he cannot object to the signature again. The lawsuits for the objection of the objection and the withdrawal of objection that the creditor can apply against both the signature objection and the objection against the signature are technical and detailed matters, and it is beneficial to request consultancy and advocacy services from the lawyers who are experts in their fields in order to avoid loss of rights.
For more information, you can see other articles on our website, and contact the Solmaz Law and Consultancy team for detailed information and consultancy services.
Best Regards.
References
KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık.
Enforcement and Bankruptcy Law
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