In this article, we will try to answer questions such as "What is forced execution law?", "What is an execution order without judgment?", "What are the types of execution orders without judgment?", "How to initiate an execution order without judgment?", "How to object to it?", "What is the objection period?", "Which is the competent execution office?", and frequently asked questions.
What is Forced Execution Law?
Forced execution law is a set of regulations containing provisions for the creditor to obtain their claim through state execution organs when the debtor's behavior prevents the creditor from receiving their due in situations involving debtor-creditor relationships stemming from substantive law.
Individuals involved in any ordinary/commercial legal transactions in daily life enter into mutual obligations within their agreements. These individuals must fulfill their obligations appropriately. If these obligations involve a debtor-creditor relationship and one party fails to fulfill their duties, various legal remedies come into play as a sanction.
As a rule, when a debtor does not fulfill their obligation, to enforce the debt against the debtor, the material truth regarding the right must be adjudicated by a court. However, methods like execution orders without judgment constitute an exception to this rule.
What is an Execution Order Without Judgment?
An execution order without judgment is a special method regulated under Articles 42-144 and other relevant provisions of the Execution and Bankruptcy Law, allowing the collection of money and security claims through forced execution without a court judgment or a document equivalent to a judgment. In other words, an execution order without judgment is a special method where the creditor can initiate execution proceedings against the debtor without relying on a court decision or an equivalent document.
In execution orders without judgment, the creditor can directly initiate proceedings against the debtor and legally seize the debtor's assets. In this process, the creditor requests a payment order from the competent execution office, and the execution office starts the proceedings against the debtor based on this request.
There is no need for a court decision or a negotiable instrument in execution orders without judgment, although in practice, documents like promissory notes, checks, and bills of exchange are often used. However, it can also be used for other types of claims.
The main difference between execution orders with and without judgment is the possibility of objection in the latter. In execution orders with judgment, the debtor cannot claim that they do not owe the debt. In execution orders without judgment, since no prior adjudication has occurred, the debtor is given the opportunity to object to the proceedings, thus preventing the finalization of the execution.
Execution orders without judgment are often the first recourse for creditors lacking strong evidence to prove their claims. However, this method is also open to abuse by creditors, which is why the law provides debtors with the right to object and halt the proceedings.
Types of Execution Orders Without Judgment
Execution orders without judgment, used by creditors to collect their claims from debtors, are categorized into different types:
General Seizure Execution
Regulated under Articles 46-144/a of the Execution and Bankruptcy Law, this is the main method for all private law money and security claims.
Execution by Seizure for Negotiable Instruments
A special method used when the claim is based on negotiable instruments (bills of exchange, promissory notes, checks).
Execution by Seizure for Leased Properties
Regulated under Articles 269-276, this method applies only when rent is unpaid or the lease term has expired, allowing both the collection of rent and eviction.
Execution by Seizure for Subscription Agreements
Introduced into our law in 2018 under Articles 1-9 of the Law on the Commencement of Execution Proceedings for Money Claims Arising from Subscription Agreements No. 7155, this is a special type of execution order without judgment for money claims from subscription agreements.
These types cater to different circumstances and conditions, enabling creditors to protect their rights and collect their claims effectively.
How to Initiate an Execution Order Without Judgment?
To initiate an execution order without judgment, follow these steps:
Application to the Execution Office
The creditor must apply to the competent execution office to start the process.
Issuance of a Payment Order
Following the application, the execution office sends a payment order to the debtor, warning that execution proceedings will commence if the debt is not paid within a specified period.
Objection to the Payment Order
The debtor has 7 days to object to the payment order. If no objection is made, the proceedings become final.
The Finalization Stage of Enforcement Proceedings
Upon the debtor's failure to respond to the notice of default or to pay the debt, the creditor requests the enforcement proceedings to be finalized from the enforcement office, and the proceedings become finalized.
Seizure
The execution office initiates the process by seizing the debtor's assets to satisfy the debt.
Competent Execution Office in Execution Orders Without Judgment
The competent execution office for an execution order without judgment is determined based on the type of claim and the debtor's residence. According to Article 50/1 of the Execution and Bankruptcy Law, the rules on jurisdiction in the Civil Procedure Code are applied by analogy. Key points to consider include:
Debtor's Residence
The execution office in the district where the debtor resides is competent.
Type of Claim
Depending on the claim, such as negotiable instruments, the execution office where the instrument was issued may be competent.
Location of the Property
For proceedings involving real property, the execution office where the property is located is competent.
Contractual Money Debts
For money debts arising from contracts, both the debtor's residence and the place of performance are competent jurisdictions.
Contractual Provisions
Parties may specify a competent execution office in their contract.
Objection Period and Details in Execution Orders Without Judgment
In execution orders without judgment, there is an objection mechanism because no prior judicial decision has been made. The objection period is 7 days from the notification of the payment order. If no payment or objection is made within this period, the proceedings continue, and seizure may occur.
Objections to Debt and Interest in Execution Orders Without Judgment
A debtor can object to the debt, claiming it is incorrect or unjust. The objection must be made within 7 days, and if the objection is upheld, the proceedings stop. Debtors can object to the principal debt, the interest, or both. If no objection is made to the interest, the amount specified in the payment order becomes final.
Jurisdictional Objection in Execution Orders Without Judgment
A jurisdictional objection claims the execution office is not competent. It must be made within 7 days of the payment order, specifying the competent execution office.
Objection to Signature in Execution Orders Without Judgment
A debtor may object to the authenticity of the signature on the document supporting the execution. If upheld, the proceedings are halted.
Frequently Asked Questions
How is the 7-day objection period calculated?
The 7-day objection period begins the day after the notification is made, according to the Notification Law No. 3185.
What recourse does the creditor have against the debtor's objection?
To invalidate the debtor's objection, the creditor can request the annulment of the objection by applying to general courts according to Articles 67-68 of the Execution and Bankruptcy Law (EBL), depending on the reason for the objection and the nature of the documents in hand. Additionally, the creditor can request the temporary or permanent removal of the objection by applying to execution courts. For the removal of the objection, the creditor must have a document defined in Articles 68-68/b of the EBL. In this case, the burden of proving that the objection is invalid lies with the creditor.
What is a sample objection petition for an execution order without judgment?
We do not find it appropriate to share generic sample petitions that could cause you to suffer loss of rights. Each case process, proceedings, events, and individuals are sui generis, meaning they are unique and need to be handled separately. We recommend consulting and working with professional lawyers in the field to proceed with your legal processes in the healthiest way.
What can the debtor do if they miss the objection period for an execution order without judgment?
If the debtor misses the objection period and cannot apply for a delayed objection, another recourse is a negative declaratory action. This action does not automatically stop the execution process. If the debtor wants to stop the execution process by filing this lawsuit, they must deposit the follow-up amount as security in the court cashier. If the debtor proves they are not liable at the end of the case, they can get this security back. Although the debtor is not obliged to deposit security, without it, the execution process will not stop, and the creditor can both seize assets and request their sale. If the debtor has paid the debt under the threat of execution, they can claim the debt is unjust through a restitution lawsuit.
Is it possible to pursue foreign currency claims through an execution order without judgment?
In relationships where a monetary claim is agreed upon in Turkish Lira or a foreign currency, according to EBL Article 58/1-3, only Turkish Lira can be subject to general seizure proceedings. In cases of foreign currency claims, the creditor can request collection by converting the claim into Turkish Lira based on the Central Bank's effective selling rate on the due date or the actual payment date. If interest is agreed upon, the highest annual deposit interest rate applied by state banks to the relevant foreign currency is used for claims on the actual payment date, while the interest rate applied to TL is used for claims on the due date.
What is a delayed objection?
A debtor who wants to object to a payment order must do so within seven days from the notification of the payment order. This period is definite. However, the rule that the objection period is definite has an exception called delayed objection. If the debtor cannot object to the payment order without fault, they can file a delayed objection. Situations such as the debtor being seriously ill, encountering a natural disaster, or being on a long trip unable to receive the notification are considered valid reasons. The debtor's legal representative can also use this right. It is important to note that delayed objection and improper notification are different and often confused in practice.
What should I do if there is an irregularity in the notification of the payment order?
An irregular notification is one that is made contrary to the procedures stipulated by law. In case of an irregular notification, the notification is deemed as not made. If the person concerned learns about the irregular notification and declares that they have learned about it, the notification is considered made, and the date they declare they learned about it is considered the notification date. A debtor who misses the objection period due to an irregular notification should file a complaint with the execution court within 7 days from the date of learning and also object to the debt at the relevant execution office within the same period. As explained in the decision of the General Assembly of the Supreme Court dated 05.06.1991, case number 1991/12-258, and decision number 1991/344: "The person concerned who learns about the irregular notification must bring the irregularity of the notification before the execution court within seven days from the date they learned about it by way of a complaint."
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