What is Enforcement Proceedings?
Enforcement proceedings refer to the process initiated by the Enforcement Offices to collect a creditor’s claim through state authority or to ensure the fulfillment of a performance that has not been executed, in cases where the debtor fails to fulfill their debt for any reason, delays an action they are required to perform, or does not pay a monetary debt. When a debt is not paid on time or a right is not fulfilled, the creditor applies to the enforcement office to demand the collection of their claim or the fulfillment of the right. To have this demand fulfilled through the power and resources of the state, the creditor initiates enforcement proceedings. This initiated enforcement proceeding is categorized into different types based on the nature of the claim and the legal conditions specified in the law, which we will also examine below.
What Are the Types of Enforcement Proceedings?
It is possible to make a threefold classification of the types of enforcement proceedings in our legal system. Enforcement proceedings can be examined from different perspectives as judgment-based enforcement, non-judgment enforcement, and enforcement through the conversion of a pledge into cash. Additionally, apart from this threefold classification, provisional attachment (preliminary injunction) can also be considered as a temporary legal protection measure. The enforcement types in question will be examined in detail below, with comprehensive information related to the subject matter.
Enforcement Based on a Court Judgment
In enforcement based on a court judgment, the creditor whose right has not been fulfilled or has been violated must first apply to the court, obtain a favorable decision regarding the matter applied for, and based on this decision, request enforcement of the judgment. Unlike enforcement without a judgment, the subject of this enforcement procedure is not limited to monetary and collateral claims. Enforcement of judgments concerning the performance or non-performance of an act, child custody and visitation rights, and easement rights will be carried out through this enforcement method. Additionally, in some exceptional cases, even if there is no favorable court decision, it is possible to resort to enforcement based on a judgment if documents with the nature of a judgment specified by law exist.
In enforcement based on a judgment, it is extremely difficult for the debtor to oppose this procedure, which is more advantageous for the creditor in terms of recovering their claim compared to enforcement without a judgment. This is because there is already a judgment obtained from general courts regarding the debt in question; therefore, as a rule, the debtor cannot stop the enforcement by opposing it.
The creditor has the right to apply for enforcement based on a judgment for all their claims against the debtor. Furthermore, in our law, for claims whose subject matter is other than money, it is mandatory for the creditor to apply for enforcement based on a judgment. However, for claims related to money, it is possible to initiate enforcement proceedings without obtaining a judgment. In such cases, the creditor may also choose to start enforcement without a judgment.
Enforcement Without a Judgment
The non-judicial enforcement procedure is a process that can be initiated even if the creditor does not have any judgment or document in hand. For the creditor to initiate non-judicial enforcement, there is no need to possess any court decision. In fact, to proceed via the General Seizure method, the creditor does not even need to have any document. The creditor can directly apply to the enforcement office to start the procedure. However, non-judicial enforcement can only be initiated for monetary and secured claims. As an exception, our law also foresees that non-judicial enforcement can be applied for the eviction of immovable property when the lease term expires.
Since there has been no prior trial in non-judicial enforcement, the debtor has the opportunity to object to the procedure, stop it, and prevent its completion. Therefore, if the debtor objects to the non-judicial enforcement within the legal period, the creditor must continue the procedure by filing a motion to lift the objection in enforcement courts if the creditor has the documents specified in the Enforcement and Bankruptcy Law; otherwise, if those documents are not available, the creditor must file a lawsuit for cancellation of the objection in the General Courts. Additionally, non-judicial enforcement itself includes:
It is divided into four types of enforcement proceedings:
Enforcement Through Eviction of Leased Immovable Property
Enforcement by General Seizure
Enforcement Regarding Monetary Claims Arising from Subscription Agreements
Enforcement Specific to Negotiable Instruments
What is Enforcement by General Seizure?
Enforcement by General Seizure is a method of enforcement provided under our law solely for monetary claims and secured debts. The enforcement process via general seizure can be initiated by the creditor without the need to rely on any court judgment or document. The process begins with the creditor’s request for enforcement, upon which the enforcement office sends a payment order to the debtor. If the debtor does not object to the payment order or if the objection is dismissed, the enforcement becomes final.
If the debtor fails to make the payment despite the enforcement becoming final, the debtor’s attachable assets are seized in an amount sufficient to cover the debt. These seized assets are then sold upon the creditor’s request, and the claim subject to enforcement is paid. If the debtor’s assets are insufficient to cover the creditor’s claim and the case cannot be closed, the creditor is issued a certificate of insolvency for the uncollected portion.
Claims secured by pledge cannot be pursued via the non-judicial enforcement route. Instead, enforcement must first be sought through the sale of the pledged asset.
The debtor has 7 days from the notification of the non-judicial payment order to object on grounds such as the debt not existing, the debt having been extinguished, the statute of limitations having expired, the due date not yet having arrived, or the amount being less than that stated in the payment order, among other reasons. An objection filed within the proper time and in the proper manner automatically suspends the enforcement. The debtor must either object to the payment order within 7 days or make the payment to the enforcement office within the same period. If the debtor neither objects nor pays within this timeframe, the enforcement becomes final and the creditor can request seizure to collect the debt.
What is the Enforcement Procedure for Monetary Claims Arising from Subscription Agreements?
The enforcement procedure for monetary claims arising from subscription agreements, regulated by Law No. 7155 titled “The Procedure for Initiating Enforcement Proceedings Regarding Monetary Claims Arising from Subscription Agreements” (ASKATK), is a special enforcement method established outside of the Enforcement and Bankruptcy Law. This procedure provides a special non-judicial enforcement process that the party providing goods or services in exchange for a fee under the subscription agreement can apply to collect their claims.
Enforcement proceedings for monetary claims arising from goods and services provided to consumers for the fulfillment of subscription agreements and invoiced accordingly must be initiated and conducted through the Central Enforcement System (MTS) within the National Judiciary Informatics System (UYAP). However, this mandatory requirement applies only to the party providing the goods or services, not to both parties of the agreement.
The essential conditions for this enforcement procedure are: there must be a subscription agreement between the parties, and the claim must be a monetary claim arising from this subscription agreement. Additionally, it is mandatory that this enforcement proceeding is initiated through a lawyer.
In this enforcement procedure, the debtor also has the right to object to the payment order prepared through the UYAP system and served to the debtor. The debtor may object to the payment order within 7 days from the date of notification or make the payment within the same 7-day period. The objection to the payment order can be submitted to any enforcement office or electronically via the MTS using a digital signature. If no objection is made within the 7-day period and no payment is made within the same period, the enforcement becomes final, and the creditor gains the right to seize the debtor’s assets to collect the debt. If the enforcement is finalized and the debtor does not pay the debt, continuing the enforcement proceeds to the seizure stage through compulsory execution. At this stage, subsequent procedures must be carried out at the enforcement office, and a request in this regard must be submitted.
What is Enforcement Procedure by Seizure Specific to Negotiable Instruments?
In our legal system, negotiable instruments regulated under the Turkish Commercial Code are considered valuable documents. A creditor whose claim is based on a negotiable instrument can pursue enforcement through this procedure or alternatively via the General Seizure Procedure. The most significant distinction between the enforcement procedure specific to negotiable instruments and the General Seizure Procedure is that the former includes provisions designed to facilitate a faster and easier process. Accordingly, the timeframes in enforcement through negotiable instruments are shorter, and as a rule, the debtor’s objection does not automatically suspend the enforcement.
The enforcement procedure specific to negotiable instruments is regulated in parallel with the General Seizure Procedure. The fundamental stages of the enforcement are the same. This procedure also involves the stages of filing the enforcement request, issuing a payment order, confirmation of the enforcement, seizure, sale, and payment.
Regarding objections to the served payment order in enforcement specific to negotiable instruments, the payment period is set to 10 days from the date of service; objections related to the instrument, signature, debt, or other issues must be made within 5 days. Unlike non-judicial enforcement, in enforcement specific to negotiable instruments, simply submitting an objection petition to the enforcement office is not sufficient. A lawsuit challenging the debt must be filed in the enforcement court; otherwise, the objection will be invalid.
What is the Enforcement Procedure for the Eviction of a Leased Property?
It has been previously mentioned that, as a rule, non-judicial enforcement can only be initiated for monetary claims and security deposits. Although it is generally mandatory to apply the judicial enforcement procedure for other types of claims, the legislator has allowed the eviction of leased immovable property through non-judicial enforcement under certain special conditions.
First and foremost, it should be noted that this enforcement procedure applies only to immovable properties leased under a rental agreement. If there is no rental agreement between the parties, eviction of the property cannot be carried out through this enforcement procedure.
The legislator has regulated two types of non-judicial eviction here. The first is eviction due to non-payment of rent. Essentially, if the tenant avoids paying the rent, the landlord can initiate enforcement through the General Attachment Procedure based on the existing monetary claim. However, pursuing enforcement through the General Attachment Procedure will only enable the collection of the unpaid rent. In this case, if the landlord wants not only to collect the rent but also to evict the tenant from the leased property, they have the right to initiate eviction proceedings through non-judicial enforcement based on the non-payment of rent. The procedures for eviction due to unpaid rent are parallel to those of the General Attachment Procedure. This enforcement process also includes steps such as filing a follow-up request (sample no:1), sending a payment order, dismissing objections if raised against the payment order, and executing the eviction.
In the case of eviction due to the expiration of the lease term, unlike eviction due to non-payment of rent, it is required that the existing lease agreement be in writing. Additionally, it is sufficient for the landlord to have a properly completed eviction undertaking. One important point to note is that the legislator has set a specific time limit for applying to this enforcement procedure. The landlord must apply within one month from the end of the lease term and initiate the process to evict the tenant. This time limit is a forfeiture period, so it is extremely important that individuals pay attention to this deadline to avoid losing their rights.
Procedurally, this enforcement route is arranged differently from other enforcement procedures. Although it also begins with a follow-up request, instead of a payment order, an eviction order will be sent based on the request. In case of an objection, if the objection is dismissed, or if no objection is made and the request is finalized, the eviction stage will follow.
As can be seen, the eviction due to the expiration of the lease term is structured in four stages, unlike other enforcement procedures: (follow-up request – eviction order – finalization of eviction request – eviction).
Additionally, regarding the eviction of leased immovable property, it will be helpful to explain the issues related to Example No. 13 Eviction Warning Payment Order due to non-payment of rent and the tenant’s default in paying rent, as well as Example No. 14 eviction proceedings based on an eviction undertaking.
For eviction due to the tenant’s failure to pay rent, the enforcement office will issue and send to the tenant an Example No. 13 eviction warning payment order. In the payment order prepared as Example No. 13, the payment of the unpaid rent debt and the eviction of the tenant who has not paid the rent are requested. The legislator has provided a 7-day objection period and a 30-day payment period against the Example No. 13 eviction warning payment order.
Example No. 14 eviction order is an enforcement proceeding initiated by the landlord against the tenant for the purpose of eviction. If the landlord has a properly obtained eviction undertaking and wishes to carry out the eviction based on this undertaking, the enforcement office sends the Example No. 14 eviction order. For this eviction order, a 7-day objection period and a 15-day eviction period have been foreseen.
What is Enforcement Through the Conversion of a Pledge into Money?
Each of the enforcement methods we have examined above involves ordinary claims, meaning claims that are not secured by a pledge. A pledge, in terms of substantive law, is a real right with certain characteristics. The legislator has made it mandatory for creditors with pledged claims to first apply the enforcement procedure known as “Enforcement Through the Conversion of a Pledge into Money.” In other words, a creditor whose claim is secured by a pledge must first resort to this enforcement method if they want to collect their claim through enforcement proceedings.
The essence of enforcement through the conversion of a pledge into money is that the pledged property is first sold and converted into money, and then the creditor’s claim is satisfied from that amount. If the money obtained from the sale of the pledged property is insufficient to cover the creditor’s claim, it is then possible to proceed with enforcement by seizure or bankruptcy for the remaining unpaid debt. Procedurally, it should be noted that there is no separate seizure stage in this enforcement method because the purpose of seizure is essentially to seize assets or rights that can be converted into money to cover the outstanding debt. However, in enforcement through the conversion of a pledge into money, the property or right to be converted into money is already secured before the enforcement process begins.
Regarding objections to the payment order and the finalization of the enforcement, objections to the payment order follow a procedure parallel to that of general enforcement by seizure. If the debtor does not explicitly object to the pledge within the 7-day objection period, the debtor is deemed to have accepted the pledge right reported by the creditor. If the debtor objects only to the pledge right, the debtor is considered to have accepted the debt shown in the payment order and objected solely to the pledge right. If the debtor does not object to the payment order within 7 days and fails to pay the debt within 15 days, or if the debtor objects but the objection is annulled by the court, the creditor may request the sale of the pledged immovable property within 6 months.
What is Precautionary Attachment?
Precautionary attachment is a legal protection method in our law that allows, by court order, the temporary seizure of the debtor’s assets to secure the outcome of an existing or future enforcement proceeding related to monetary claims. Precautionary attachment is a specific temporary legal protection related to monetary claims and is regulated under the Enforcement and Bankruptcy Law.
For precautionary attachment to be applicable, certain primary conditions must be met. These conditions fundamentally include the existence of a monetary claim, that the claim is not secured by a pledge, and the presence of reasons for precautionary attachment as enumerated in the law. A creditor who believes that the debtor will not pay the debt when due or will attempt to conceal assets to evade enforcement proceedings may request precautionary attachment on the debtor’s assets.
With precautionary attachment, the debtor is prevented from transferring their assets to third parties. The request for precautionary attachment can be made before starting enforcement proceedings related to the debt or after filing a lawsuit. If the request is made after filing a lawsuit, it is sufficient to apply to the court where the current case is being heard. It is also possible to request this before initiating enforcement proceedings.
When the request is made before the lawsuit, a competent court is determined according to the provisions set forth in the Code of Civil Procedure. In this case, the lawsuit may be filed at the Civil Court of First Instance or the Commercial Court of First Instance. If the request is accepted, the debtor will be temporarily prevented from transferring their assets to a third party, and the failure of the enforcement proceedings regarding the debt will be avoided.
REMOVAL OF PRECAUTIONARY ATTACHMENT ORDER
Two methods are provided under our law for the removal of precautionary attachment. The first is to file an objection, and the second is to provide a security. The debtor can request the removal of the precautionary attachment decision based on the court’s jurisdiction, the reasons for the precautionary attachment, or the provision of security. Security does not mean the removal of the precautionary attachment decision itself, but rather that the precautionary attachment decision continues to be valid based on the security provided. The objection period for precautionary attachment is regulated as 7 days. Objections against the precautionary attachment decision are made to the court that issued the decision, or if after the precautionary attachment decision the creditor has filed a lawsuit against the debtor, the objection is made to the court where the lawsuit was filed.
If the creditor who requested the precautionary attachment is found to be wrong, they are obligated to compensate the debtor and any third parties for damages caused by the issued precautionary attachment decision. Therefore, the creditor who wrongfully requested the precautionary attachment is held liable for all damages suffered by the debtor and third parties. For the wrongfully imposed precautionary attachment decision, the debtor has the right to file a compensation lawsuit against the creditor for the damages incurred. This compensation lawsuit is filed in general courts.
