Here is the English translation of the text:
One of the most important stages of execution law is the matter of notification. For an enforcement proceeding under execution law to be valid, the notification must be made in accordance with the prescribed procedure. In order to refer to a properly made notification within the scope of execution law, the notification must be made in accordance with the provisions outlined in the Notification Law No. 7201.
In execution law, the creditor may initiate an enforcement proceeding against the debtor in order to recover the debt owed. The debtor has the right to challenge, complain, or litigate against the enforcement proceeding or the debt through objections or lawsuits. The debtor will be notified of the enforcement proceeding once the payment order related to the debt has been properly delivered, and they can take action regarding the debt and the enforcement proceeding within the legally prescribed time frame. Once the legally prescribed periods have passed, the enforcement proceeding will become final, and enforcement actions can begin in favor of the creditor. The payment order served on the debtor must be delivered in compliance with the provisions of the Notification Law No. 7201 and the relevant regulations concerning the implementation of the Notification Law. Otherwise, the debtor will no longer have the chance to object to the enforcement proceeding, and unjust actions may be taken against the debtor. If the payment order has been delivered improperly, the debtor may apply for a complaint, and as a result, the date of notification will be corrected, causing the period for objection to start over for the debtor.
Regulations regarding the procedures for notification in enforcement and bankruptcy law can be found in Articles 21 and 57 of the Execution and Bankruptcy Code (İİK).Article 21 of the Execution and Bankruptcy Code (İİK):
Notifications made by the enforcement offices are done in writing and in accordance with the provisions of the Notification Law.
These notifications can also be made directly by submission in exchange for a receipt.
If the creditor or debtor changes the address written in the judgment or in the mortgage deed according to Article 38, unless they notify each other through notary, the notification will be made to the same address. If the person is not found at that address, the provisions of Article 35 of the Notification Law will apply.
If the address change has been notified to the other party by the creditor or debtor as per the above paragraph, but the notification is still made to the old address, the party who took advantage of Article 35 of the Notification Law by sending the notification to the old address is obligated to compensate the other party for all damages caused by this, plus 15%, and the penalty prescribed in Article 343 shall also be applied.
Article 57 of the Execution and Bankruptcy Code (İİK):
In notifications related to enforcement, the provisions of the Notification Law shall apply. However, if the debtor is one of the persons who must be appointed a representative by law, the enforcement officer must request that the relevant authority appoint a representative within a short time.
Notification shall be made to individuals who are subject to actions related to their profession or art, as per Articles 159 and 396 of the Civil Code, in relation to debts arising from such actions.
It is stated that notifications to be made within the scope of enforcement actions under the Enforcement and Bankruptcy Code will be carried out in accordance with the provisions of the Notification Law No. 7201 and the Regulation on the Implementation of the Notification Law.
To refer to a notification as being made in accordance with the procedure, as a rule, the notification must be made to the person himself/herself in accordance with Article 10 of the Notification Law. However, if the notification cannot be made to the person, it will be carried out in accordance with other provisions regulated by the law.Proper Notification in the Context of Enforcement Law
As we have indicated, in order to refer to a proper notification, the relevant notification must be made to the debtor personally, as stipulated in Article 10 of the Notification Law within the scope of enforcement law. If the notification cannot be delivered to the debtor personally, it can be made according to the conditions specified in the law. Notifications made outside the forms prescribed by the law will be considered improper notifications, and a situation as if the notification was not made will arise upon the filing of a complaint.
If the debtor is not present at the known last address according to the law at the time of the notification, it is possible to deliver the notification to someone who permanently resides at the address or to a person working at the address (such as a maid, etc.) in accordance with Article 16 of the law. For the notification to be proper, the person to whom the notification is made must be over 18 years of age, and it must be indicated in the notification minutes that they reside at the same address as the principal party. If the debtor is not present at the address, the notification will be considered made on the date it was delivered to the person present at the address, in accordance with the legal conditions specified. If the person receiving the notification does not live at the same address as the party to whom the notification is directed, it can be proven by all types of evidence, as stated in the case law of the Court of Cassation.Article 16 of the Notification Law (TK): If the person to be notified is not found at their address, the notification shall be made to persons residing in the same household as the individual or to one of their servants.
If the party to be notified is represented by an attorney, the notification shall, as a rule, be made to the attorney. In the case where the party is represented by multiple attorneys, the notification made to one of the attorneys will be valid, and the date of notification will be considered as the date when the last attorney receives the notification in accordance with the procedure.TK Article 11: In cases followed by an attorney, the notification is made to the attorney. If there are multiple attorneys, it is sufficient to notify one of them. If the notification is made to multiple attorneys, the notification date to the first attorney will be considered the official notification date.
However, the provisions of the Code of Criminal Procedure regarding the notification of decisions to the accused are reserved.
(Additional second paragraph: 11/1/2011-6099/4th article) In cases followed by an attorney, notifications made at the attorney’s office shall be done during official working days and hours.
Notifications to legal representatives, or those who should have legal representatives, shall be made to these representatives, unless the law requires that they be made personally.
If individuals who are legally engaged in a profession or craft at a specific location or residence are not present at the address where they practice their profession or craft at the time of notification, the notification will be made to one of the permanent officials or employees present at the address where the profession or craft is being carried out, and if the name of the person receiving the notification is written in the notification report, it will be considered a valid notification and will have legal consequences.TK Article 17: Individuals who continuously carry out their profession or craft at a specific location, if they are not present at that location, the notification shall be made to one of the permanent officials or employees at the same location. If individuals who carry out their profession or craft at their residence are not present, the notification will be made to one of the officials or employees at their residence, or if none are available, to persons residing in the same household or one of the servants.
Notification to legal entities and businesses:Article 12 of the Notification Law (TK) – Notification to legal entities shall be made to their authorized representatives. If there are multiple representatives, the notification shall be made to only one of them.
In disputes arising from the transactions of a business, notification to the commercial representative is valid.
Notification to employees and servants of legal entities:
Article 13 of the Notification Law (TK) – If individuals designated to receive notifications on behalf of legal entities are not present at their workplace during regular working hours or are unable to receive documents at that time, the notification shall be made to a public official or employee present at the location.
If the party receiving the notification is a representative of the business operations of the business they represent, the notification made to the commercial representative will be considered valid.If the party receiving the notification is a representative of the business operations of the business they represent, the notification made to the commercial representative will be considered valid.
According to the provisions of Article 22 of the Notification Law, the person to whom the notification is to be made must appear to be over 18 years old and clearly not incapacitated. Otherwise, the notification will be considered invalid. Article 22 of the Notification Law: The person to whom the notification is to be made must appear to be at least eighteen years old and clearly not incapacitated.
In the case where the person to whom the notification is addressed refuses to accept the notification or no one is present at the address where the notification is to be made, the officer making the notification must record in the notification minutes that the person refused to accept it and obtain the recipient's signature. Otherwise, the notification may be considered an improper notification. In this case, the notification officer must deliver the notification to the head of the neighborhood or one of the members of the elder council, or to the chief of police or police officers in exchange for a signature. Additionally, a notice containing the recipient's address must be affixed to the door of the building at the specified address. If the person is not found at the address, the officer must, if possible, notify the nearest neighbors or, if available, the building manager or doorman.
According to the Notification Law, the person to whom the notification is made must not be an adversary of the recipient. Even if the conditions listed above are met, if the person receiving the notification is an adversary of the recipient, the notification will be considered an improper notification.LEGAL REMEDIES AVAILABLE IN CASE OF IMPROPER NOTIFICATION UNDER THE SCOPE OF ENFORCEMENT LAW
In the case where the notification to the debtor party is considered improper, the notification will not automatically be deemed as improper by the authorities. The improper nature of the notification will not be automatically considered by the relevant authorities. The improper notification will be considered as made when the recipient learns the content of the notification. Until the recipient learns the content of the notification, it will be considered that no notification has been made due to its improper nature. The debtor party who is the recipient of the notification must apply to the relevant authorities in order for the notification to be considered improper.
If a party does not receive the notification in accordance with the proper procedure, they may miss the time limit for objections or complaints related to the debt or process subject to enforcement proceedings, which may lead to their detriment. In order to prevent injustice to the debtor party, a complaint mechanism is provided within our enforcement law. In this regard, a person who has been improperly notified can apply for a complaint within 7 days from the date they learn of the improper notification, in accordance with the provisions of Article 16 of the Enforcement and Bankruptcy Law. If the improper notification concerns a notification related to public order, the 7-day time limit will not apply, and no time limit will be set for filing a complaintAccording to Article 16/1 of the Enforcement and Bankruptcy Code (İİK):
Except for matters where the resolution is left to the court, complaints can be made to the Enforcement Court regarding actions taken by the Enforcement and Bankruptcy Offices that are contrary to the law or inappropriate for the case. The complaint must be filed within seven days from the date the actions are learned.
The Relevant Authority to Whom a Complaint Will Be Made.
According to Article 17 of the Enforcement and Bankruptcy Law, the party who is the recipient of an improper notification can apply to the Enforcement Court. If the Enforcement Court is convinced of the existence of improper notification, the notification date will be corrected to the date when the debtor recipient became aware of the relevant notification.PROOF OF IMPROPER NOTIFICATION
The recipient who claims that the notification in question is improper may prove this claim with any type of evidence. The recipient can prove their claim through witnesses, an expert to be consulted by the enforcement court, or by examining the relevant documents related to the notification at the institution that carried out the notification.CANCELLATION OF IMPROPER NOTIFICATION
As a result of filing a complaint, if the enforcement court decides that an improper notification was made to the debtor, the notification will be declared invalid. The debtor may request the relevant enforcement office to correct the notification date to the date the debtor learned of the notification. Once a decision is made regarding the improper notification, all actions taken based on the improper notification will become invalid.
If the debtor raises an objection to the debt or signature within the prescribed period after the notification date has been corrected due to the improper notification, the enforcement proceedings will be suspended. If a seizure has been carried out in relation to the enforcement proceedings, the seizure will be lifted, and the seizure process will be halted until the objection is evaluated. If the debtor applies to the enforcement court with a request to suspend the enforcement proceedings along with the complaint, the court may suspend the enforcement proceedings until it reaches a conclusion regarding the complaint.Example Court of Cassation Decisions Regarding Improper Notification and the Removal of Notification in the Context of Enforcement Law.
- Court of Appeals, Civil Chamber 2012/10947 E., 2012/28661 K.
“Judgment Text”
COURT: Izmir 12th Enforcement Court
DATE: 13/02/2012
NUMBER: 2012/56-2012/13
Upon the debtor’s request for an appellate review of the court decision within the prescribed period, the related case file was sent from the local court to the department. After listening to the report prepared by the Review Judge and reading and examining all the documents in the file, the case was discussed and considered as follows:
An enforcement proceeding without a judgment was initiated against the plaintiff-debtor in the İzmir 23rd Enforcement Directorate, under file number 2011/12036. The debtor filed a complaint regarding the improper service on 07.02.2012, both to the Enforcement Directorate and the Izmir 12th Enforcement Court. In its decision dated 08.02.2012, the İzmir 23rd Enforcement Directorate rejected the request, stating that the Directorate did not have the authority to examine the improper service complaint.
The debtor may file a complaint regarding improper service within seven days from the date of learning about the payment order. Such a complaint is examined and decided upon by the Enforcement Court in accordance with Article 18 of the Enforcement and Bankruptcy Law (İİK). According to the clear provisions in Articles 16/1 and 18/2 of İİK, complaints must be made to the Enforcement Court; complaints made to the Enforcement Directorate are not valid.
The court’s decision to reject the complaint on the grounds that the improper service complaint was made to the court on 07.02.2012, while the Enforcement Directorate rejected the complaint on 08.02.2012, was not appropriate under Article 16/1 of İİK.
RESULT: The debtor’s appeal objections were accepted, and the court’s decision was overturned in accordance with Articles 366 of İİK and 428 of the Civil Procedure Code (HUMK), with the decision to be reconsidered within 10 days from the notification of the judgment. The decision was made unanimously on 08/10/2012.
- Court of Appeals, Civil Chamber 2016/11587 E., 2017/2700 K.
“Case Law Text”
COURT: Enforcement Court
Upon the request of the creditor for the appeal review of the court decision with the date and number above within the statutory period, the related file has been sent to the chamber from the local court. After listening to the report prepared by the Judicial Examiner for the case file and reading and reviewing all the documents in the file, the matter was discussed and considered:
The creditor’s attorney filed an application to the enforcement court, requesting the cancellation of the Enforcement Directorate’s decision dated 06.07.2015, stating that the payment order sent to the debtor was served incorrectly, and the enforcement proceedings had not become final. The court decided to reject the complaint.
According to Article 32 of the Notification Law, titled “The Effect of Improper Notification,” even if the notification is made improperly, it is deemed valid if the recipient has become aware of the notification. The date declared by the recipient is considered the notification date. According to this provision, an improper notification is not necessarily invalid; if the recipient learns about the improper notification, it will be effective from the date the recipient learns about it. The right to file a complaint about improper notification, as stipulated in the mentioned article, belongs to the recipient of the notification. Whether the notification was made properly or not can only be examined by the enforcement court upon a complaint made by the interested party within the scope of Article 16/1 of the Enforcement and Bankruptcy Law (İİK). Unless explicitly raised, the enforcement court cannot examine the improper notification ex officio, nor can the enforcement office consider the notification as improper unless a decision issued by the enforcement court documenting the improper notification is provided.
In this case, the enforcement office’s acceptance that the enforcement proceedings had not become final because the payment order was improperly served and proceeding accordingly is incorrect.
Therefore, the court’s decision to reject the complaint, instead of accepting it for the reasons explained above, is incorrect.
CONCLUSION: Upon acceptance of the creditor’s appeal objections, the court decision is overturned pursuant to Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Civil Procedure Code (HUMK) for the reasons written above. The advance fee paid shall be refunded upon request, and the appeal can be filed within 10 days from the notification of the judgment. The decision was unanimously made on 27/02/2017.
- Civil Chamber 2021/6193 E., 2022/323 K.
“Case Law Text”
COURT: … Regional Court of Appeal …. Civil Chamber
Upon the creditor’s request for the appellate review of the decision given by the Regional Court of Appeal within the specified time, the related file has been sent to the chamber, and after listening to the report prepared by the Review Judge and reviewing and examining all the documents in the case file, the matter was discussed and considered:
In the debt collection procedure initiated by the creditor through general enforcement without a court judgment, the debtors, in their applications to the enforcement court, argued that the payment order notifications and the notifications sent to the heirs were made improperly. They requested the acceptance of the complaint regarding the improper notification, the determination of the notification date as 17/08/2020 (the date they learned of the improper notification), and the annulment of the enforcement procedures and payment order. The first-instance court rejected the complaint on the grounds of timeliness. Upon the debtors’ appeal, the Regional Court of Appeal decided to accept the appeal of the debtor … …..A.Ş., annul the decision of the first-instance court, accept the complaint regarding the improper notification by the debtor … …..A.Ş., and correct the payment order notification date to 17/08/2020, the date they learned of it. The previous enforcement actions against the company were declared void, while the complaints regarding the improper notifications of other debtors were rejected due to time limitations, and the appeals that were found to be unmerited were separately rejected.
According to Article 32 of Law No. 7201, even if the notification is made in an improper manner, it is considered valid if the recipient has been informed of the notification process. The date stated by the recipient is accepted as the notification date. As seen, an improperly made notification is not necessarily void; it will become valid on the date the recipient learns of it (Supreme Court of Appeals Grand Chamber decision dated 05.06.1991, 1991/12-258 E.-1991/344 K.). In order for the provision of this article to be applied, the existence of a notification, even if improper, is a prerequisite.
The payment order notification sent to the debtor company was marked with the note “The notification document was delivered to the company representative … by signature” and was delivered on 23/02/2018. Since the representative of the company … was not authorized on the notification date, it is seen that the notification is improper due to its violation of Articles 12 and 13 of Law No. 7201 and Articles 20 and 21 of the Notification Regulation.
On the other hand, the legal basis for the claim of improper notification is Article 16 of the Enforcement and Bankruptcy Code (İİK), and according to the first paragraph of this article, the complaint about the improper notification must be filed with the enforcement court within 7 days from the date the improper notification is learned.
In determining the date of learning, the date reported by the complainant debtor is taken as the basis, and this date can only be disproved by the opposing party with written evidence. As adopted in the decision of the Civil Law General Assembly dated 12.02.1969, numbered 1967/172-107, the contrary of the declared learning date cannot be proven by witness testimony.
In the present case, the Regional Court of Appeal’s determination that the payment order notification sent to the debtor company was improper is correct. However, in the case file 2019/331 E. – 2019/402 K. of the … Enforcement Court, it is understood that the debtor company’s representative, on 08/08/2019, filed a complaint regarding the lifting of the seizures placed on the enforcement file where the payment order in question was notified. In this case, it must be accepted that the debtor company was aware of the enforcement proceedings and notification at the latest by the complaint dated 08/08/2019. Therefore, the application made to the enforcement court on 17/08/2020 exceeded the seven-day period stipulated in Article 16/1 of the İİK.
Thus, the Regional Court of Appeal should have rejected the request from the debtor company on the grounds of the statute of limitations. Therefore, the decision of the Regional Court of Appeal must be overturned.
CONCLUSION:
With the acceptance of the creditor’s appeal, the decision of the … Regional Court of Appeal, dated 10/03/2021, numbered 2020/2373 E. – 2021/581 K., is overturned for the reasons stated above, in accordance with Article 364/2 of the Enforcement and Bankruptcy Code, as amended by Law No. 5311, and Article 373/2 of the Civil Procedure Code (HMK) No. 6100. The prepaid appeal fee shall be refunded upon request. The file shall be sent to the Regional Court of Appeal that issued the decision. The decision was made unanimously on 13/01/2022.
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