Time Limits in Enforcement Law

In enforcement law, proceedings related to proceedings are carried out within certain time limits. The majority of these time limits are stipulated by the Law and are definite periods. These limits envisaged by the law cannot be changed, shortened or extended by the parties, judges or enforcement officers. For this reason, the relevant persons and those in charge of the executive bodies are required to carry out the work and actions within the time limit specified in the law. However, it should be noted that the periods stipulated in the Enforcement and Bankruptcy Law do not have the same effect in terms of those concerned and bailiffs. It is obligatory for the persons concerned to carry out the works and actions that they have initiated or are required to do in the enforcement proceedings against them within the legal time limit. Otherwise, they will lose their right to take this action and they will face sanctions stipulated in the law if this action is not taken. However, even if the enforcement officers make a transaction after the deadline, this transaction is considered valid. However, those affected by the process can apply for a complaint for the action not done in time.

In this bulletin, we have explained the characteristics of the periods in enforcement law, their calculation and the consequences of not carrying out the actions on time.

1. Features of Time Limits in Enforcement Law

Time limits in enforcement law are of a definite nature. The persons concerned, bailiffs and enforcement officers are required to take the necessary actions within the lime limits determined by the law. This issue aims to ensure that the enforcement proceedings process is concluded faster and to prevent the proceedings from being dragged on. Thus, various stages of enforcement proceedings will be completed in certain periods and the expected benefit will be provided.

In enforcement law, it is not possible to change, extend or shorten the time limits determined by the law by making a contract between the parties. Likewise, judges and bailiffs cannot change these time timits. They can only give time to the parties for action to be performed within the framework of the authority  to determine the time limit, which is given to them by the law, with a lower and upper limit. This is also an exceptional case.

The certainty of the time limits determined in the enforcement law is especially valid for the debtor or creditor or third parties who are the addressee of the enforcement works. Because, if these people do not perform the necessary work and actions within the legal period, it will not be possible for them to perform, that action again. Even if the action is taken, it is no longer valid and does not produce the expected results. The time limits are kind of a final term and loss of rights may occur if they are missed. For example,

“The action for withdrawal of objection must be filed within 1 year from the date of notification of the objection by the creditor whose request for proceeding is objected to. For the calculation of this time limit, the provision of article 19 of the EBL should be taken into account. This time limit, which is shown in article 67 of the EBL, is a final term. In this case, while a decision should be made considering that the case has not been filed within the 1-year period, which is one of the conditions of the action for the withdrawal of objection and which must be taken into account ex officio, which is the final term, it is not correct to consider the merits of the case and rule accordingly.”[1]

In another decision, the Supreme Court ruled as follows;

“If the debtor does not object to the payment order within 7 days as per article 62/1 of the EBL, or if she/he objects after the deadline, in this case, the creditor has no legal benefit in filing a lawsuit for the withdrawal of objection, since the enforcement proceeding without a judgment becomes final.  However, since the day on which the payment order is notified to the defendant is understood to be a public holiday, the objection must be deemed to have been made within the time limit. Since the period must expire after the holiday in accordance with Articles 19/3 and 4 of the EBL.[2]

However, the debtor who has the right to benefit from the expiration of any period may waive this right. This waiver does not affect third parties. (EBL art.20). The following judicial decisions are shared in order to shed light on the subject;

“After receiving the notification of the payment order, accepting the debt and consenting to the attachment and objecting to the debt this time within the objection period will not result in the opposite of acceptance.

Upon the notification of the payment order, the debtor personally came to the enforcement office and accepted the debt under the signature. Objection to the debt this time within the objection period will not result in acceptance. Failure to comply with the deadlines  only has no effect on the law of third parties. It is inaccurate for the authority  to reject the complaint when it should have been accepted.”[3]

“A seizure can be issued by the waiver and consent of the debtor from the time limits. According to Article 32 of the EBL, the objection and  Payment period for the execution order is 7 days. Before the expiration of the objection and payment period stipulated in the execution order, a seziure can be issued only with the waiver and consent of the debtor. Otherwise, the seizure issued cannot be accepted as a valid seizure. In the concrete case, since the seizure issued before the expiry of the objection and payment period is invalid, the judgment must be reversed with the acceptance of the complaint for this reason.”[4]

In some cases, certain time limits can be found for bailiffs as well. For example,

“The sales  officer must take into account  The 10-day period between the 1st and 2nd tender days in the sales announcements. Extension or shortening of this period is the reason for the annulment of the tender.[5]

2. Calculation of Time Limits in Enforcement Law

In enforcement law, the time limits are determined as days, months or years. The starting date of the time limits is also stipulated in the relevant article. If there is no determination, it is accepted that the period starts to run from the date of notification of the transaction.

The first day is not taken into account in the calculation of the periods determined as days. The next day is considered the first day and the calculation is made.

The periods determined as month or year will end on the same day of the month or year if they have started to run, and on the last day of the month if there is no such day at the end of the month in which the period ends. If the last day of a period coincides with a public holiday, the period ends on the day following the holiday. The period is deemed to have ended at the holiday time of the last day.

The following judicial decisions regarding the legislation and related provisions that should be taken into account regarding the calculation of the periods are instructive;

“Article 33 of the Notification Law No. 7201  Stipulates that notifications can also be made on official and judicial holidays. However, this provision regarding the procedure for making the notification is a provision for the notification officer and regarding the validity of the notification, and when it comes to the calculation of the deadlines, the general provisions in the CCP, TCO and EBL should be applied. According to the aforementioned provisions, it has been stated that the first day, which is the day of notice or notification, will not be taken into account for the calculation of the periods determined as days, and the period will end during the holiday time of the last day, and for the calculation of the periods determined as months or years, if there is no such day at the holiday time of the same day of the month or year it will end, and if there is no such day at the end of the month when the period ends, these periods will end at the holiday time of the last day of the month. It has also been regulated that the official holidays are included in the period, and if the last day of the period coincides with the official holiday, the period will end at the holiday hour of the first business day following. As a result, if the last day of a month’s period coincides with a holiday, it must be accepted that the notification made until the holiday time of the following business day is made within the time limit.[6]

In another similar decision, it is stated how the calculation will be made in case the last day of the period coincides with a public holiday;

“According to the DJC and EBL 19/1 dated 22.06.1966 and numbered 1966-8/8, The first day of notification of the warning is not taken into account in the calculation of the 30-day period stipulated in Article 315 of the Turkish Code of Obligations. In addition, according to the provision of article 19/3 of the EBL, if the last day of the period coincides with an official holiday, the period ends on the day following the holiday.[7]

In the event that the debtor is notified of the payment order twice, against the rule that the period starts to run with the notification, the Supreme Court has decided as follows on which one will be taken as a basis and how the time limit should be calculated;

“When the debtor is notified of the payment order for the second time, a new right of objection is granted to the debtor. Although the payment order sent to the debtor for the second time could not be served, sending the notification is sufficient for the resumption of the right of objection. For this reason, the decision of the local court to reject the complaint should be upheld on the grounds that there is no unlawful aspect in the decision of the enforcement office to stop the proceedings against the debtor upon objection.[8]

Conclusion

In enforcement law, the deadlines are definite and determined by the law. It is obligatory to carry out the proceedings related to the proceeding law within the definite and disqualifying time periods stipulated in the law. Due to the fact that these periods are usually short, such as 7 days or 5 days, and due to the lack of information on this subject, transactions cannot be carried out on time by the relevant persons, and unfortunately, difficult or impossible mistakes can be made. Knowing the work and process times and calculating these times correctly is a job that requires expertise. Before taking action on such matters, it is necessary to seek the help of a specialist lawyer as soon as possible.

Best Regards.

Solmaz Law and Consultancy Team.

References

PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, s.116-117.

SÜPHANDAĞ, Yavuz, (2015), İcra ve İflas Hukukunda Uygulamalar, Bilge Yayınevi, 9. Baskı (the work was used to access judicial decisions.)

ÖZKAN, Hasan, (2013), İcrada Şikâyet ve Süreler, Legal Yayıncılık, 1. Baskı. (Yargı kararlarına erişimde eserden yararlanılmıştır.)

19th Civil Chamber of the Supreme Court dated 2.3.2011 and E.14456, K.3650.

3rd Civil Chamber of the Supreme Court dated 4.3.2008 and E.2021, K.3516

12nd Civil Chamber of the Supreme Court, E.1996/14874, K. 1996/15207.

19th Civil Chamber of the Supreme Court  2005/7244, K. 2005/9913.

SCACC 24.6.1988, E.12/298, K.645.

SCACC Resolution dated 4.3.2009 and numbered E.6/74 K.98

12nd Civil Chamber of the Supreme Court, E.2002/7043, K.2002/8237.

SCACC, dated 20.03.2013 and E.12-1129, K.380.

[1] 19th Civil Chamber of the Supreme Court dated 2.3.2011 and E.14456, K.3650.

[2] 3rd Civil Chamber of the Supreme Court dated 4.3.2008 and E.2021, K.3516

[3] 12nd Civil Chamber of the Supreme Court, E.1996/14874, K. 1996/15207.

[4] 19th Civil Chamber of the Supreme Court E. 2005/7244, K. 2005/9913.

[5] SCACC 24.6.1988, E.12/298, K.645.

[6] SCACC Resolution dated 4.3.2009 and numbered E.6/74 K.98

[7] 12nd Civil Chamber of the Supreme Court, E.2002/7043, K.2002/8237.

[8] SCACC, dated 20.03.2013 and E.12-1129, K.380.