Enforcement Without Judgment and Objection

What we do in this area

Enforcement without judgment is the general route by which a creditor without a court judgment seeks to collect a monetary claim, and it makes up the greater part of enforcement files. The firm works on both sides in this area: for the creditor, preparing the enforcement request, service of the payment order and having the proceedings made final; for the debtor, examining the payment order, lodging the objection in time and with the correct scope and, where necessary, bringing a negative declaratory action (menfi tespit).

This page is a sub-topic of the enforcement and bankruptcy law tree. The routes open to the creditor after an objection are explained on a separate page: annulment and lifting of objection. Claims based on cheques and promissory notes follow a different enforcement route: enforcement based on negotiable instruments.

Which claims the proceedings suit

The general attachment route is open for every claim whose subject is money or security; the claim need not be based on a document (Article 42 of the Enforcement and Bankruptcy Code, İİK). Types of file frequently encountered in practice:

The enforcement request states clearly the amount of the claim, the start date and rate of interest, and the debtor's identity and address details; an omission may lead to loss of interest. Against proceedings started at an enforcement office lacking jurisdiction, the debtor may raise a jurisdiction objection within the objection period.

The payment order and the seven-day period

Upon the enforcement request, the enforcement office sends the debtor a payment order. The payment order states that the debt must be paid within seven days, that an objection may be made within the same period and that, if no objection is made and the debt is not paid, a declaration of assets must be filed (İİK Art. 60). The period runs from the day following service of the payment order on the debtor; for this reason, whether service was properly effected is the first matter examined in the file.

The objection is made to the enforcement office and may be oral or written (İİK Art. 62). Stating grounds is not compulsory; however, grounds not stated may as a rule not be raised at the stage of lifting the objection (İİK Art. 63). If the objection concerns part of the claim, the amount objected to must be stated clearly; otherwise no objection is deemed to have been made. An objection to the signature on an ordinary instrument must also be made separately and expressly; otherwise the signature is deemed admitted for the purposes of the proceedings.

An objection made in time stops the proceedings of itself (İİK Art. 66). From this point the creditor, depending on the document held, applies for the lifting of the objection before the enforcement court or for the annulment of the objection before the general court.

When the period is missed

If no objection is made within the seven-day period, the payment order becomes final and the creditor may request attachment. The debtor then has two routes:

• Late objection (İİK Art. 65): If the debtor was unable to object in time because of an obstacle arising through no fault of their own, they may lodge a late objection with the enforcement court within three days of the obstacle ceasing. The obstacle must be documented.
• Negative declaratory action (İİK Art. 72): The debtor may bring an action before the general court for a declaration that they owe nothing. In an action brought before the proceedings, the court may order the proceedings stayed against security. An action brought after the proceedings have started does not stop them; the court may only, against security, order by way of interim measure that money paid into the enforcement office not be paid out to the creditor.

If the debt was paid because the proceedings had become final but the debtor considers that nothing was actually owed, an action for restitution (istirdat) may be brought within one year of the payment date to recover the money paid (İİK Art. 72).

The difference between complaint and objection

An objection is directed at the debt itself; a complaint (şikayet) is directed at an act of the enforcement office (İİK Art. 16). Where the payment order is incompletely drawn up, service is irregular or the payment order does not match the enforcement request, the remedy is a complaint rather than an objection, and it is made to the enforcement court within seven days. Where the irregularity concerns public order, the complaint is not subject to a time limit. Confusing the two routes may lead to the loss of both the time limit and the right in the file.

How we work

On the creditor's side the file begins with information on the basis of the claim and the debtor's assets; the enforcement route and the items claimed are determined accordingly. On the debtor's side the first task is to establish the date of service and the time remaining; the scope and grounds of the objection are written with the action to be brought at the next stage in mind. Although the firm is in Konak, İzmir, files are monitored through UYAP.

The page where we explain the process in detail: Our working process.