INKO LEGALINKO LEGAL Attorneys at Law
ENFORCEMENT AND BANKRUPTCY LAW

Annulment and Lifting of Objection

The debtor's objection to the payment order stops the proceedings; for the creditor to continue, the objection must be removed. There are two routes, and the choice depends on the nature of the document held: if the document is of a type listed in Article 68 of the Enforcement and Bankruptcy Code (İİK), the lifting of the objection before the enforcement court within six months; if not, an action for annulment of the objection before the general court within one year.

Where an objection is made to enforcement without judgment, the creditor may, within one year of service of the objection, bring an action for annulment of the objection before the general court (Article 67 of the Enforcement and Bankruptcy Code, İİK, Law No. 2004) or, within six months, apply to the enforcement court for the lifting of the objection (İİK Art. 68). Definitive lifting of the objection is, as a rule, possible for claims based on an instrument containing an acknowledgement of debt whose signature has been admitted or notarised, or on documents duly issued by official authorities. Compensation depends on the distinct conditions of Articles 67, 68 and 68/a. In annulment proceedings, compensation against the debtor requires a wrongful objection and a liquid claim, and is calculated on the upheld amount on request; compensation against the creditor requires wrongful and bad-faith enforcement.

What we do in this area

An objection made by the debtor in time stops the proceedings and puts a choice before the creditor: go to the enforcement court with the document in hand, or bring an action before the general court. At this stage the firm handles, for the creditor, the choice of route, preparation of the action or application and conduct of the proceedings; for the debtor, defence of the objection and the claim for compensation against wrongful proceedings.

This page is a sub-topic of the enforcement and bankruptcy law tree and continues from the enforcement without judgment and objection page.

Comparison of the two routes

Heading Annulment of objection (Art. 67 of the Enforcement and Bankruptcy Code, İİK) Lifting of objection (İİK Art. 68 and 68/a)
Court General court (civil court of first instance, commercial, consumer or labour court) Enforcement court
Period One year from service of the objection Six months from service of the objection
Document requirement No Article 68 document is required; general evidentiary rules, including Articles 200–201 HMK and their exceptions, apply Yes; only the documents listed in the Code
Procedure Under general rules; witnesses and court-appointed experts may be heard Narrow and fast; examination on the documents
Nature of the decision Final judgment in the substantive sense Does not constitute a final judgment; an action may be brought before the general court
Compensation On request, compensation for wrongful objection of not less than twenty per cent On request, compensation of not less than twenty per cent

The choice is made according to the document. Where there is an instrument containing an acknowledgement of debt whose signature has been admitted by the debtor or notarised, or a document duly issued by an official authority, the enforcement court route is open. An invoice or account statement alone does not necessarily qualify. An ordinary written instrument may qualify if it contains an unconditional acknowledgement of debt and an admitted signature; the content and signature status of each document must be assessed.

The action for annulment of objection

The action is brought before the general court to allow proceedings stopped by the objection to continue, and the existence of the claim is examined under general rules. The competent court varies with the nature of the claim: the commercial court of first instance for commercial claims, the consumer court for consumer transactions, the labour court for employee claims. In commercial disputes concerning the payment of a sum of money, employee claims, claims arising from a tenancy (Article 18/B of Law No. 6325) and disputes within the jurisdiction of the consumer court (Article 73/A of Law No. 6502), recourse to mediation before bringing the action is a precondition of the action; the Court of Cassation (Yargıtay) requires this precondition for actions for annulment of objection as well. Time spent in mediation is not counted in calculating the one-year period (Article 18/A of Law No. 6325).

If the action is upheld, the objection is annulled and the proceedings continue from where they stopped. Against a debtor whose objection is found to be wrongful, on the creditor's request, compensation for wrongful objection (icra inkar tazminatı) of not less than twenty per cent of the upheld liquid claim is awarded; in Court of Cassation practice this requires the claim to be liquid, that is, of a kind the debtor could calculate. If the action is dismissed and the proceedings are found to have been wrongful and in bad faith, compensation at the same rate is this time imposed on the creditor.

Definitive and provisional lifting of objection

Examination in the enforcement court is limited to documents. The debtor can prove their objection to the debt only with a document of the same kind (such as a payment receipt or a release); witnesses are not heard. With a definitive lifting decision the proceedings continue and the creditor may request attachment.

If the debtor has denied the signature on an ordinary instrument, the route is provisional lifting of the objection (İİK Art. 68/a). The enforcement court examines the signature; if it concludes that the signature belongs to the debtor, it lifts the objection provisionally. This decision allows the creditor to request provisional attachment; the debtor, for their part, may bring an action for release from debt (borçtan kurtulma davası) before the general court within seven days of pronouncement or service of the decision (İİK Art. 69). Security of fifteen per cent of the claim must be provided for this action; if the action is not brought in time, the provisional lifting becomes definitive. A debtor who wrongfully denies their signature also faces compensation and a fine.

If the periods are missed

Once the six-month period has passed, the enforcement court route is closed; however, an action for annulment of the objection may still be brought within the one-year period. If the year has also passed, the objection cannot be removed within the existing proceedings; the creditor may, provided the limitation period has not expired, bring an action for the debt before the general court or start new proceedings.

How we work

The file is examined together with the objection petition and the documents on which the claim is based; whether the document falls within İİK Article 68 is clarified at the first meeting and the time calculation is made. For claims subject to compulsory mediation, the application is planned with the time limit for the action in mind. On the debtor's side, the scope of the objection and any payment documents are assessed and the defence is built accordingly.

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

FREQUENTLY ASKED

What people ask about this area

Before which court is the action for annulment of objection brought?
Before the general court competent according to the nature of the claim: the commercial court of first instance for commercial claims, the consumer court for consumer transactions, the labour court for employee claims, and the civil court of first instance for other claims. Territorial jurisdiction is determined under the general rules. The action must be brought within one year of service of the objection on the creditor.
Is mediation compulsory before an action for annulment of objection?
In commercial disputes concerning the payment of a sum of money, employee claims, claims arising from a tenancy (Article 18/B of Law No. 6325) and disputes within the jurisdiction of the consumer court (Article 73/A of Law No. 6502), mediation as a precondition of the action is also required for the action for annulment of objection; an action brought without meeting this precondition is dismissed on procedural grounds. The time from the application to the mediation office until the final report is not counted in calculating the one-year period (Article 18/A of Law No. 6325). Which category the claim falls into is determined at the first review.
What is compensation for wrongful objection, and who claims it?
It is the compensation awarded, on the creditor's request, against a debtor whose objection is found to be wrongful in an action for annulment of objection, and it may not be less than twenty per cent of the claim (Article 67 of the Enforcement and Bankruptcy Code, İİK). In Court of Cassation (Yargıtay) practice, the claim must be liquid, that is, of a kind the debtor could calculate. If the action is dismissed and the proceedings are found to have been wrongful and in bad faith, compensation at the same rate may be awarded in the debtor's favour.
If the enforcement court rejects the application to lift the objection, is the claim lost?
No. A decision on lifting an objection does not determine the underlying claim with substantive finality. Subject to time limits and the grounds of the decision, an action for annulment of objection may still be available, or an ordinary debt action may be brought. Rejection does not invariably prevent continuation of the original enforcement file following a successful annulment action. Compensation depends on the statutory conditions.

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IMPORTANT NOTICE

This page is general information only and does not constitute legal advice. Every file is assessed on its own documents, dates and parties; the general explanations here cannot be applied directly to your own situation. Prepared in line with the Union of Turkish Bar Associations’ advertising restrictions. This English text is a courtesy translation prepared by the firm; in case of any discrepancy the Turkish text prevails.

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