Article 16 of the Enforcement and Bankruptcy Law
Except for matters that the law leaves to the discretion of the court, complaints can be made to the enforcement court against the actions of enforcement and bankruptcy offices if they are contrary to the law or deemed inappropriate for the incident. Such complaints must be made within seven days from the date the actions are learned.
A complaint can be made at any time due to the failure to fulfill a right or due to unjustified delay.
This law exists in our legal system to provide a means of complaint for monitoring unlawful conduct by enforcement officers. As understood from the article of the law, if enforcement officers act contrary to the law or inappropriately regarding the incident, a complaint can be made within seven days from the date the action is learned. However, if it causes loss of a right or unjustified delay in exercising a right, there is no such time limit, and a complaint can be made at any time.
Subject of the Complaint
All actions carried out by enforcement and bankruptcy offices constitute the subject of the complaint. Procedures such as the seizure of a property, its sale, or the notification sent to the debtor are actions performed by enforcement offices, and the attitude of enforcement and bankruptcy offices regarding these requests can be the subject of a complaint.
Who Can File a Complaint?
The person filing the complaint must have a legal interest in the enforcement process. Accordingly, it is possible for the creditor, debtor, or a third party affected by the enforcement to apply for a complaint. These mentioned third parties are those who have a legal interest in the annulment or modification of the procedure.
Procedure of the Enforcement Court in Case of a Complaint
The complaint is considered an urgent matter and therefore is subject to a simplified trial procedure.
According to Article 18/3 of the Enforcement and Bankruptcy Law (İİK): Unless otherwise stipulated, the enforcement court shall decide whether the enforcement office responsible for the complained action should provide an explanation and whether a hearing is necessary; if it deems a hearing appropriate, it shall summon the concerned parties to the hearing as soon as possible and issue the necessary decision even if they do not appear. For cases without a hearing, the enforcement court must issue its decision within ten days from the date the case is submitted. Hearings may only be postponed if necessary and for no longer than thirty days.
As understood from the article, the court has the authority to decide with or without a hearing. If deemed unnecessary, the case may be adjudicated based on the file alone. It is also possible to issue a decision in the absence of the party against whom the complaint is filed.
Actions to Be Taken Upon a Complaint
Article 17 of the Enforcement and Bankruptcy Law (İİK) – If the complaint is accepted by the enforcement court, the contested action is either annulled or corrected. The execution of the officer’s actions that were not performed without a valid reason or were delayed is ordered. In cases where the court accepts the complaint, the contested action is annulled or corrected, and the execution of any unperformed actions is also ordered.
Can the Enforcement Officer Revoke Their Decision?
It is possible for the enforcement officer to revoke their decision within the complaint period.
Supreme Court 12th Civil Chamber, Case No. 2019/5556
The case relates to a complaint about the enforcement officer’s action. In the incident, after the decision to accept the creditor’s request for the seizure of the retirement bonus, a ruling dated 07.04.2017 stated that the creditor did not have a request for the seizure of the debtor’s retirement bonus, and that the decision subject to the complaint was issued accordingly. This was held to be contrary to the principle that the enforcement office cannot revoke its own decision spontaneously.
Complaint Period
As we have previously stated in our article, the complaint period for enforcement officer actions is 7 days from the date the action is learned. However, there are some exceptions.
1- In cases where a right is not fulfilled or is left pending, the complaint is not subject to any time limit and can be filed at any time.
2- For actions that violate public order, there is also no time limit, and a complaint can be made at any time.
The period starts from the date the action is learned, not from the date it is notified. Therefore, for example, if an enforcement action to be complained about is viewed through the UYAP portal, the 7-day period begins from the date it is seen in this system.
Republic of Turkey Supreme Court 12th Civil Chamber
File No: 2011/11811
Decision No: 2011/30041
Date: 22.12.2011
As a rule, applying to the enforcement court via complaint to annul an enforcement officer’s action due to it being contrary to the law or the facts is subject to a 7-day time limit. The complaint period begins from the date the complained action is learned (Article 16/1 of the Enforcement and Bankruptcy Law – İİK). There are two important exceptions to this rule:
1- A complaint can be filed at any time due to non-fulfillment of a right or unjustified delay (Article 16/2). The purpose of this provision is to protect the concerned parties against the enforcement officer’s refusal to perform a right.
2- There is also no time limit to file complaints against actions contrary to public order. This principle is adopted in doctrine and accepted in Supreme Court practice. Actions carried out contrary to “mandatory provisions” enacted to protect the interests of the debtor, third parties, and the public are contrary to public order. Complaints against such actions can be filed at any time (Prof. Dr. Baki Kuru, Enforcement and Bankruptcy Law – 1988 Edition, Volume 1, p.94 – General Assembly of the Supreme Court, 22.01.2003, 2003/12-17 E., 2003/29 K.).
In the present case, it was understood that the creditor, represented by Viyabank Ltd., initiated an enforcement proceeding based on converting a mortgage established as a limit mortgage into cash. After the enforcement order numbered sample 6 was served to the debtor, Nedim Benaroy, on 27.01.2008, the debtor applied to the enforcement court on 06.02.2008, after the legal 7-day period had passed, claiming that the mortgage document subject to the enforcement order did not contain an unconditional acknowledgment of debt, was not based on a current account or credit relationship, could not be subject to enforcement, and requested the cancellation of all interests exceeding the mortgage limit, demanding the cancellation of the proceeding.
The court ruled to cancel the proceeding on the grounds that the collateral mortgage did not rely on a current account or credit relationship, and that in such cases, an enforcement proceeding cannot be initiated without filing a lawsuit in the general courts to determine the amount of the debt. The complaints other than the exceeding of the mortgage limit are subject to the 7-day time limit according to the aforementioned legal provision.
Therefore, the court should have rejected the requests other than the issue of exceeding the mortgage limit due to expiration of the period, but instead examined the merits of the case and reached the written decision, which is incorrect.
Moreover, the maximum amount mortgage (upper limit mortgage) established as security for a future or probable debt may be limited to the amount specified in the mortgage contract table, as the amount the debt will reach is uncertain. In this case, the principal debt secured by the mortgage, interest, enforcement follow-up costs, and accessory claims agreed by the parties cannot exceed this limit. Examination of the contract tables subject to the proceeding showed that the mortgages were established as limit mortgages.
Since the debtor objected to the proceeding exceeding the limit, according to the settled case law of our Chamber, enforcement proceedings with mortgages exceeding the limit are related to public order and subject to unlimited complaints. The court should have conducted an examination on the issues mentioned above and made a decision based on whether the amount requested in the proceeding exceeds the limit mortgage. Deciding the case with an incomplete examination, as done, is also incorrect.
RESULT: By partially accepting the creditor’s appeal objections, the court decision is reversed pursuant to Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure for the reasons stated above.
Competent Court
The court to be applied to for a complaint about enforcement officer actions is the enforcement court where the action was carried out. This court has exclusive jurisdiction.
Supreme Court 12th Civil Chamber
Date: 29.03.2021
File No: 2021/2581
Decision No: 2021/3664
In the concrete case, it is understood that the plaintiff requested a photocopy of the enforcement file from the debtor company’s official on 15.01.2019, and as of this date, the complainant must be considered to have been aware of the attachment procedure. Therefore, since the complaint application made on 07.02.2019 was after the legal seven-day period, the court should have rejected the complaint due to the expiration of the time limit. However, the court examined the merits of the case and accepted the complaint, and the Regional Court of Appeal wrongly rejected the creditor’s appeal on the grounds of timeliness. Consequently, the Regional Court of Appeal’s decision must be annulled, and the decision of the Court of First Instance overturned.
Supreme Court General Assembly of Civil Chambers
Date: 16.03.2021
File No: 2017/360
Decision No: 2021/264
The provisional attachment order dated 11.07.2014 by the Istanbul Anatolian 2nd Commercial Court of First Instance was enforced on 14.07.2014. Upon the request of the debtor’s attorney, the enforcement officer revoked this attachment on 24.07.2014, reversing the previous decision on the grounds that the attachment dated 14.07.2014 was faulty. This decision contradicts the rule that an enforcement officer cannot revoke their own decision. Moreover, since the provisional injunction dated 02.07.2014 does not cover provisional attachments, there is no legal obstacle to the enforcement of the provisional attachment, making the revocation decision also incorrect.
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