Follow-up Specific to Negotiable Instruments

January 9, 2024 
Negotiable instruments are regulated between Articles 670 and 823 of the Turkish Commercial Code No. 6102. According to this law, negotiable instruments are listed in a limited number. A negotiable instrument, according to the Turkish Commercial Code No. 6102, consists of promissory notes, bills of exchange, and checks. The follow-up for these limited types of instruments is provided with special provisions in the Enforcement and Bankruptcy Law. Since negotiable instruments are regulated under the Commercial Code, they are considered commercial transactions. The importance of these instruments in commercial life lies in their use as a type of payment and credit in business. The key difference between negotiable instruments and other valuable documents is their negotiability. Due to this negotiability feature, they are valuable documents that can change hands and be transferred in the market. The debt in a negotiable instrument is independent of the underlying contract, meaning it remains valid even if the contract is not valid. For these reasons, negotiable instruments, being one of the types of valuable documents, hold significant importance for commercial life.

The follow-up of negotiable instruments, which are crucial for commercial life, is also subject to special provisions. Under the Enforcement and Bankruptcy Law, the follow-up process specific to negotiable instruments is regulated under the "Seizure for Negotiable Instruments" section. The Enforcement and Bankruptcy Law provides two different follow-up methods for negotiable instruments: one through seizure, regulated under Articles 168-170b, and the other through bankruptcy, regulated under Article 171 and onwards. The follow-up specific to negotiable instruments may be conducted either by forced enforcement through the seizure procedure or by using the general seizure procedure. However, for the follow-up to be specific to negotiable instruments, meaning to follow up via bankruptcy, the debtor must be a person subject to bankruptcy.

Conditions for Applying for a Follow-up Procedure Specific to Negotiable Instruments

The conditions for applying to the enforcement procedure specific to negotiable instruments are regulated under Article 167 of the Enforcement and Bankruptcy Law (İİK). According to Article 167 of the İİK:

The creditor whose claim is based on a check, promissory note, or bill of exchange, even if the debt is secured by a pledge, may pursue enforcement proceedings either through the specific procedures outlined in this section or, if the debtor is subject to bankruptcy, through bankruptcy proceedings.

In the enforcement request, in addition to the matters specified in Article 58, the creditor is obliged to specify whether they wish to pursue enforcement through seizure or bankruptcy proceedings against a debtor who is subject to bankruptcy, and must attach the original negotiable instrument and certified copies of it equal to the number of debtors.

As can be seen in the relevant article, the first condition for initiating a specific enforcement procedure related to negotiable instruments, whether through general seizure or bankruptcy proceedings, is that the relevant debt must be based on a negotiable instrument. Therefore, only if the claim is based on a promissory note, bill of exchange, or check as regulated in the Turkish Commercial Code (TTK), can the creditor apply for a specific enforcement procedure for negotiable instruments. The determination of whether the debt instrument is a negotiable instrument or not is made by the enforcement officer based on the mandatory elements specified for promissory notes in Article 671 et seq. of the TTK, for bills in Article 776 et seq., and for checks in Article 780 et seq. Accordingly, enforcement procedures for negotiable instruments cannot be initiated for valuable documents that do not qualify as negotiable instruments.
Article 671 of the Turkish Commercial Code (TTK) – (1) Bill of Exchange:
a) The word “bill of exchange” in the text of the instrument, or if the instrument is written in a language other than Turkish, the equivalent word used for “bill of exchange” in that language,
b) An unconditional and irrevocable order to pay a specified amount,
c) The name of the person who is to pay, the “drawee,”
d) The maturity date,
e) The place of payment,
f) The name of the person to whom or to whose order the payment is to be made,
g) The date and place of issuance,
h) The signature of the issuer.

(Required elements to be included in a bill of exchange)
TTK Article 776 – (1) Promissory note or a bill payable to order;
a) The term “promissory note” or “bill payable to order” in the text of the instrument, and if the instrument is written in a language other than Turkish, the word used in that language corresponding to the term “promissory note” or “bill payable to order,”
b) An unconditional and unqualified promise to pay a specific amount,
c) The maturity date,
d) The place of payment,
e) The name of the person to whom or to whose order the payment is to be made,
f) The date and place of issuance,
g) The signature of the maker.
It includes. (The elements required for an instrument to be considered a promissory note)
TTK m.770 – (1) Çek;
a) The word “check” in the instrument text and, if the instrument is written in a language other than Turkish, the word used in that language as the equivalent of “check,”
b) An unconditional and unqualified order to pay a specified amount,
c) The business title of the person to pay, the “drawee,”
d) The place of payment,
e) The date and place of issuance,
f) The signature of the issuer,
g) (Added: 15/7/2016-6728/70 article) The serial number given by the bank,
h) (Added: 15/7/2016-6728/70 article) The QR code.
It includes. (The elements required for a document to be considered a check.)
If the elements in the provided articles are found in a negotiable instrument, it will have the nature of a negotiable instrument, and the specific enforcement procedure for negotiable instruments can be applied to these documents.

Another requirement for initiating enforcement to collect a debt based on a negotiable instrument is that the enforcement action must include the records specified in Article 58 of the Enforcement and Bankruptcy Law (İİK), and the application must be made to the competent enforcement office.

According to Article 58 of the Enforcement and Bankruptcy Law (İİK), the required records for the enforcement application are as follows:

  1. (Amended: 2/7/2012-6352/9 Article) The name and surname of the creditor, and if applicable, the name and surname of their legal representative and attorney; the name of the bank where the payment will be made on behalf of the creditor or their attorney, along with account information; if available, the Turkish Republic identity number or tax identification number; reputation and place of residence; if the creditor resides in a foreign country, the place of residence to be indicated in Turkey (if the place of residence cannot be indicated, the location of the enforcement office is considered the place of residence);
  2. (Amended: 2/7/2012-6352/9 Article) The name and surname of the debtor, and if applicable, the name and surname of their legal representative, the Turkish Republic identity number or tax identification number if known by the creditor, reputation and place of residence; in cases of claims against an estate, the name and surname of the heirs to whom notifications will be sent, the Turkish Republic identity number or tax identification number if known, reputation, and place of residence.
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  3. (Amended: 17/7/2003-4949/12 Article) The amount of the claim or requested collateral in Turkish currency and, for claims with interest, the amount of interest and the date from which it begins to accrue; if the claim or collateral is in foreign currency, the exchange rate on the relevant date on which the claim is made and the interest;
  4. The promissory note, or if there is no promissory note, the reason for the debt;
  5. The chosen enforcement method;
  6. If the claim is based on a document, the original of the document or a certified copy, signed by the creditor or their representative, must be submitted to the enforcement office at the time of the enforcement request, along with one extra copy for each debtor.A receipt for the enforcement request, the submitted documents, and the enforcement fees will be issued to the creditor free of charge and without a stamp.
  7. In order for a creditor to initiate enforcement based on a promissory note, the creditor must submit the original of the relevant promissory note and as many copies as there are debtors to the enforcement office. The reason the enforcement office requires the original of the promissory note in a special enforcement method for promissory notes is to examine whether the document meets the characteristics of a negotiable instrument and to prevent the note from being circulated in the market. By taking the original of the promissory note, the competent enforcement office prevents the document from circulating, thereby protecting the creditor’s interests.As also stated in Article 58 of the Enforcement and Bankruptcy Law, one of the conditions for initiating enforcement based on a negotiable instrument is that the debtor must be a person subject to bankruptcy, and the creditor must state this in the enforcement application. This condition will only apply if the debtor is subject to bankruptcy. If the debtor is not subject to bankruptcy, this condition will not apply for enforcement based on negotiable instruments.
  8. Another condition for an enforcement request based on a negotiable instrument is that the due date of the instrument has arrived. In other words, enforcement can only be initiated based on a negotiable instrument that has matured. When the creditor applies to the enforcement office, the enforcement officer must verify whether the due date of the instrument has arrived. If enforcement is initiated for a promissory note that has not yet matured, the debtor can file an objection and request that the enforcement be halted.In an enforcement process based on a negotiable instrument, the creditor must be the authorized holder, and the debtor must be the responsible party for the relevant negotiable instrument. Whether the creditor and debtor are the authorized holder and the responsible party for the negotiable instrument is determined according to the Commercial Code. If an enforcement process is initiated by an enforcement office based on a negotiable instrument, but the person in favor of the enforcement is not the authorized holder of the instrument, or if the enforcement is initiated against a debtor who is not liable for the negotiable instrument, the person against whom the enforcement is initiated may apply to the competent enforcement court within 5 days to request the suspension or removal of the enforcement. According to Article 170a/2 of the Enforcement and Bankruptcy Law, the competent enforcement court is required to take the authorized holder and the responsible party for the negotiable instrument into consideration ex officio.

Is It Mandatory to Apply for a Lien in Enforcement Specific to Negotiable Instruments?

   According to the Enforcement and Bankruptcy Law, a creditor whose debt is secured by a lien must first apply for enforcement procedures specific to secured claims in order to collect the debt. However, the Enforcement and Bankruptcy Law provides an exception for negotiable instruments. According to Article 167 of the Enforcement and Bankruptcy Law, even if a claim based on a negotiable instrument is secured by a lien, the creditor does not have to resort to converting the lien into cash. Instead, they can directly apply for enforcement procedures specific to negotiable instruments to secure their claim.

The Enforcement Process for Negotiable Instruments

Payment Order

 The holder of the negotiable instrument (creditor) who wishes to initiate enforcement proceedings for the negotiable instrument in the enforcement office submits the enforcement request, prepared in accordance with the records specified in Article 58 of the Enforcement and Bankruptcy Law (İİK), to the competent enforcement office. After the enforcement officer of the competent enforcement office checks the enforcement request made by the creditor and the relevant negotiable instrument submitted, and determines that the instrument possesses the characteristics of a negotiable instrument and that the maturity of the instrument has arrived, the enforcement officer will send a payment order to the debtor, who is responsible for the negotiable instrument, in accordance with the provisions of İİK Articles 168/1 and 171/1.

Article 168 – (Amended: 18/2/1965-538/81 Article)

If the enforcement officer determines that the instrument is a negotiable instrument and that its maturity has arrived, they shall immediately send a payment order to the debtor along with a copy of the instrument. The following shall be written in this payment order:

  1. (Amended: 2/7/2012-6352/33 Article) The records that must be included in the request for enforcement, excluding the creditor’s or their agent’s bank account number:
  2. (Amended: 2/7/2012-6352/33 Article) A warning to pay the debt and enforcement costs to the bank account of the enforcement office stated in the payment order within ten days:
  3. If the instrument on which the enforcement is based does not qualify as a negotiable instrument, the necessity to file a complaint with the enforcement court within five days:
  4. (Amended: 9/11/1988-3494/31 Article) If the party claiming the enforcement disputes the signature on the negotiable instrument, they must notify the enforcement court within five days via a written petition; otherwise, the signature on the negotiable instrument will be considered as if it came from the party, and if they unjustifiably deny their signature, they will be fined ten percent of the debt amount based on the negotiable instrument, and if they fail to provide a decision to accept their objection from the enforcement court, the compulsory enforcement will proceed:
  5. (Amended: 6/6/1985-3222/21 Article) A warning that if it is claimed that the debtor does not owe the debt, or the debt has been settled, or an extension has been granted, or the claim has expired, or an objection to jurisdiction is made, and if the debtor does not notify the enforcement court with a petition within five days, the compulsory enforcement will continue unless the enforcement court accepts the objection:
  6. (Amended: 17/7/2003-4949/45 Article) A warning that if there is no objection and the debt is not paid, the debtor must submit a statement of assets within ten days in accordance with Article 74; if there is an objection and it is rejected, the debtor must submit a statement of assets within three days in accordance with Article 75, and if the debtor fails to submit a statement or submits a false one, they will be punished with imprisonment:
  7. The last two paragraphs of Article 60 shall also apply here.
  8. Article 171 – (Amended: 18/2/1965-538/86 Article)
  9. If the enforcement officer determines that the instrument is a negotiable instrument and that its maturity has arrived, they shall immediately send a payment order to the debtor along with a copy of the instrument. The following shall be written in this payment order:(Amended: 2/7/2012-6352/36 Article) The records that must be included in the request for enforcement, excluding the creditor’s or their agent’s bank account number:
  10. (Amended: 2/7/2012-6352/36 Article) A warning to pay the debt and enforcement costs to the bank account of the enforcement office stated in the payment order within five days:A warning to notify the enforcement office within five days, with a petition providing one extra copy of the objection and complaint about the negotiable instrument and the debt, including the reasons, to be served to the other party.
  11. A warning that if the debt is not paid within five days and there are no objections or complaints, the creditor may request the debtor’s bankruptcy from the commercial court. The last two paragraphs of Article 60 shall also apply here.The debtor has the right to object to the enforcement proceedings initiated against them. The debtor can apply to the competent enforcement court to object to the enforcement proceedings within 5 days of being notified of the payment order. The objection can be raised in two ways: one is an objection to the signature, and the other is an objection to the debt. If the debtor does not object within the specified time to the competent enforcement court, the enforcement proceedings become final, and the debtor will be required to pay the debt based on the negotiable instrument within 10 days. Similarly, if the debtor does not object to the payment order, after the enforcement proceedings become final, the debtor will be obligated to submit a statement of assets to the enforcement office within the same 10 days. If the debtor does not submit the statement of assets within this 10-day period after the enforcement proceedings become final, they will be pressured with imprisonment.An objection made within the 5-day period after the notification of the payment order will relieve the debtor from submitting a statement of assets and prevent the creditor from proceeding with the sale of the property or payment of the money in the enforcement office to the creditor. (According to Article 169 of the Enforcement and Bankruptcy Law, the debtor must notify the enforcement court of their objection to the debt in writing according to Article 168, paragraph 5. This objection does not stop other enforcement procedures, except for the sale.)

A) Objection to the Payment Order

An objection to the payment order by the debtor will be made to the enforcement court with a written petition. Depending on the merits of the objection, the enforcement court may, either ex officio or at the debtor’s request, decide to suspend the enforcement proceedings until the examination of the objection is completed. If the enforcement court rejects the debtor’s objection to the payment order, the debtor is obligated to provide a statement of assets within 3 days from the notification of the decision. Otherwise, the debtor will be subjected to coercive detention.

As mentioned, the objection to the payment order can be made in the form of an objection to the debt or an objection to the signature, in accordance with Articles 169a and 170 of the Enforcement and Bankruptcy Law (İİK).

Article 169/a – (Added: 18/2/1965-538/83 article)
(Amended first paragraph: 17/7/2003-4949/46 article) The enforcement court judge will summon both parties to a hearing within a maximum of thirty days to investigate the grounds of the objection. If, as a result of the hearing, it is proven by an official document or a document with an acknowledged signature that the debt does not exist, or has been paid or forgiven, the judge will accept the objection. In the case of an objection to jurisdiction, the enforcement court judge will make the necessary decision even if the parties do not appear.

(Amended second paragraph: 17/7/2003-4949/46 article) If the enforcement court judge, based on the documents submitted with the debtor’s objection petition, concludes that the debt has been paid or forgiven, the promissory note has expired due to statute of limitations, the debtor is not liable, or the enforcement office does not have jurisdiction, the judge may decide to temporarily suspend the enforcement proceedings until a decision is made on the merits of the objection.
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(Amended: 9/11/1988-3494/32 article) If the signature on the document submitted by the debtor is denied by the creditor, the enforcement court judge, after reviewing the case in accordance with the procedure outlined in Article 68/a, will decide whether the signature belongs to the creditor. If the judge concludes that the signature is indeed the creditor’s, they will accept the debtor’s objection and impose a monetary fine on the creditor, amounting to ten percent of the value or amount mentioned in the document. If the creditor fails to attend the hearing as required by the first paragraph, the enforcement court judge will temporarily suspend the enforcement proceedings for the disputed portion of the debt. Subsequently, the creditor can request a hearing before the enforcement court within six months at the latest and prove that the signature on the receipt does not belong to them, thereby allowing the continuation of the enforcement proceedings. If the enforcement court determines that the signature does not belong to the creditor, it will impose a monetary fine on the debtor, amounting to ten percent of the value or amount mentioned in the document.
The enforcement judge, if the debtor raises an objection based on the statute of limitations, will assess the objection according to the date on the negotiable instrument presented by the creditor. If the creditor fails to prove that the statute of limitations has been interrupted or suspended with an official or signed document, the objection will be accepted; otherwise, it will be rejected.

If the objection is accepted, the enforcement proceedings will be suspended. The creditor’s right to file a lawsuit based on general provisions remains intact.

If the creditor files a lawsuit in a general court, the collection of the denial compensation and monetary penalty will be deferred until the end of the lawsuit. If the creditor wins the case, the denial compensation and monetary penalty previously imposed will be lifted.

(Added paragraph: 9/11/1988-3494/32 article) (Amended first sentence: 17/7/2003-4949/46 article) If the debtor’s objection is accepted by the enforcement court based on substantive reasons, the creditor with bad faith or gross negligence will be liable for compensation of no less than 20% of the amount of the debt subject to enforcement. If the enforcement is temporarily suspended and the objection is rejected, the debtor will be liable for compensation of no less than 20% of the debt subject to enforcement, upon the request of the other party. If the debtor files a negative declaratory judgment and restitution lawsuit or the creditor files a lawsuit in the general court, the collection of the determined compensation will be deferred until the end of the case, and if the case is decided in favor of the party, the previously imposed compensation will be eliminated.

(Amended last paragraph: 2/3/2005-5311/13 article) Filing an appeal against the decision to reject the objection will not stop any enforcement proceedings. However, if the debtor provides security as per the third paragraph of Article 33, the enforcement will be suspended.
b) Objection to the signature:
Article 170 – (Amended: 9/11/1988-3494/33)
The debtor, in accordance with paragraph 4 of Article 168, will notify the enforcement court in writing of their objection that the signature on the negotiable instrument does not belong to them. This objection does not stop enforcement actions other than the sale.
Before the hearing, the enforcement court, after reviewing the debtor’s objection petition and any attached documents, may temporarily suspend the enforcement proceedings without notifying the creditor, if the court considers the objection to be serious. This decision will be made based on the documents.
(Amended third paragraph: 17/7/2003-4949/47)
After reviewing according to the fourth paragraph of Article 68/a, if the enforcement court concludes that the denied signature does not belong to the debtor, it will accept the objection. With the acceptance of the objection, the enforcement proceedings will be suspended. The creditor retains the right to file a lawsuit based on general provisions. If it is determined that the denied signature belongs to the debtor, and the enforcement proceedings have been suspended according to the second paragraph of this article, the debtor will be liable for a denial compensation of no less than 20% of the debt subject to the negotiable instrument and a monetary penalty of 10% of the debt subject to enforcement, and the objection will be rejected. If the debtor files a negative declaratory judgment or restitution lawsuit, the collection of the determined compensation and monetary penalty will be deferred until the conclusion of the lawsuit, and if the lawsuit results in favor of the debtor, the previously imposed compensation and monetary penalty will be lifted.


If the debtor wishes to object to the signature on the instrument, claiming that the signature does not belong to them, they must clearly indicate this in their petition submitted to the authorized enforcement office. If the petition does not explicitly state that there is an objection to the signature, the court will accept that the signature on the instrument belongs to the debtor and will reject the objection. It should be noted that an objection to the signature made by the debtor does not suspend any enforcement actions, except for the sale. If the court accepts the objection, it will decide to suspend the enforcement proceedings, and the debtor’s rights under general provisions will remain intact.

If the objection is rejected by the court, the debtor will be ordered to pay denial compensation of no less than 20% of the debt and a monetary penalty equal to 10% of the debt. The debtor may only stop the payment of the denial compensation and monetary penalty by filing a negative declaratory or restitution lawsuit in general courts according to the general provisions of law.

If the objection made by the debtor to the authorized enforcement court is accepted, and the creditor is found to be acting in bad faith or with gross fault, the creditor will be ordered to pay denial compensation of no less than 20% of the debt subject to enforcement and a monetary penalty of 10% of the debt. After the enforcement court’s decision, the payment of these amounts will be suspended until the conclusion of the court proceedings if the creditor applies to the general courts.
If the debtor wishes to object to the debt before the enforcement court, they must clearly state in their objection petition that they are objecting to the debt itself. The subject of the objection to the debt may include the non-existence of the debt, the expiration of the debt due to the statute of limitations, the postponement of the debt, the payment of the debt, or the lack of jurisdiction of the enforcement office. As a result of the objection to the debt, similar to the objection to the signature, the court may rule on denial compensation and a monetary penalty for either the debtor or the creditor.

Article 172 of the Enforcement and Bankruptcy Law (İİK) regulates the procedure for an objection made against enforcement based on a bill of exchange in the form of bankruptcy. According to the law, the objection to enforcement through bankruptcy proceedings for bills of exchange can be made by the debtor to the authorized enforcement office within 5 days from the date the payment order is served on the debtor, for the examination of the competent commercial court overseeing the bankruptcy case. The objection must be made through a written petition. If the objection is not made in writing, the court will reject the objection without examining its substance, and the enforcement through bankruptcy proceedings based on the bill of exchange will become final. Properly conducted enforcement through bankruptcy proceedings will suspend the bankruptcy proceedings. If the debtor objects to enforcement through bankruptcy, the creditor may file a bankruptcy case with the competent commercial court. If the objection by the debtor is found to be unfounded, the court will declare the debtor bankrupt. To avoid the bankruptcy decision, the debtor must pay the debt based on the bill of exchange, including interest and costs, to the creditor and deposit the debt amount into the court’s account within the framework of the court’s deposit order.
Article 172 – (Amended: 18/2/1965-538/87)

If the debtor wishes to object to or file a complaint about the payment order, they must notify the enforcement office within five days from the date the payment order is served, by submitting a petition with the reasons for the objection or complaint, along with an extra copy of the petition that will be served to the other party. One copy of this petition must be immediately served to the creditor.

Article 173 – (Amended: 18/2/1965-538/88)

If the debtor does not pay the debt within five days and does not file an objection or complaint, the creditor may request the commercial court to declare the debtor bankrupt by submitting a copy of the payment order that proves this situation.

(Added: 9/11/1988-3494/35) Once the bankruptcy proceedings are finalized, it will be announced following the procedure in the second paragraph of Article 166. Other creditors may intervene in the case or object within fifteen days from the declaration of the bankruptcy request, claiming that no condition requiring bankruptcy exists, and ask the court to reject the request.

The court will bring the enforcement file and, after examining it in a simple procedure, if it determines that the debt has not been paid and no objection or complaint has been filed, it will order the debtor to perform the payment or deposit the debt amount along with interest and enforcement costs into the court’s treasury within seven days, in accordance with Article 158. If this order is not complied with, the court will decide on the debtor’s bankruptcy. However, if the debtor presents an official document proving the payment of the debt after the expiration of the period stated in the payment order, the request for bankruptcy proceedings and the bankruptcy case will be dismissed.
The debtor may file a delayed objection with the commercial court according to Article 65. If the court finds the excuse valid, it will decide on the bankruptcy case in accordance with Article 174.

b) Objection or Complaint:

Article 174 – (Amended: 18/2/1965-538/89)

The creditor may request the commercial court to lift the debtor’s objection and complaint and to declare the debtor bankrupt. The court will decide on the bankruptcy case in accordance with Article 158.

B) Complaint Against the Payment Order

In the case of a claim based on a negotiable instrument, the debtor has the option to file a complaint against the payment order issued in the execution proceedings based on the negotiable instrument, if the actions of the execution and bankruptcy offices are contrary to the law. The provisions concerning complaints in execution or bankruptcy proceedings based on negotiable instruments are regulated under Article 171 of the Enforcement and Bankruptcy Law (İİK). According to Article 170a of the İİK, the debtor can claim, via a complaint, that the creditor does not have the right to proceed under these provisions, according to Article 168, paragraph 3 of the law.

The execution court, based on the complaint or objection made within the prescribed time, may annul the execution proceeding made based on a negotiable instrument if it finds that the negotiable instrument does not possess the characteristic of such an instrument or that the creditor does not have the right to proceed under negotiable instrument law.

(Added: 9/11/1988-3494/34 md.) In any case, if the objection to the signature is withdrawn or the debt is partially or fully acknowledged, the provisions of this article do not apply. The main provisions concerning complaints that are applicable in the execution proceedings based on negotiable instruments are regulated under Articles 16 to 18 of the İİK. Article 22 of the İİK also covers the provisions related to complaints. According to this, complaints arise when an action is taken in the execution and bankruptcy offices that is contrary to the law or inappropriate to the case, or when a right is not fulfilled or is left unresolved. The complaint period is 7 days according to Article 16/1 of the İİK. However, there are exceptions in terms of time in execution proceedings based on negotiable instruments. In cases where it is claimed that the negotiable instrument does not have the characteristics of such an instrument, or that the creditor is not the authorized holder of the negotiable instrument, or that the debtor is not the responsible party for the negotiable instrument, the complaint period for complaints in execution proceedings based on negotiable instruments is 5 days. Other grounds for complaints, except for those mentioned, are subject to the periods stipulated in the other provisions of the İİK related to complaints.
Other and Common Provisions Applicable in Execution Proceedings Based on Negotiable Instruments
,
Other provisions applicable in the execution proceedings based on negotiable instruments are specified in Article 170/b of the Enforcement and Bankruptcy Law. (Added: 18/2/1965-538/85, Amended: 17/7/2003-4949/48).

The second, third, fourth, and fifth paragraphs of Article 61, and Articles 62 to 72 shall also apply to the execution proceedings via seizure based on negotiable instruments, as long as they do not contradict the provisions of this chapter. As seen in the article, in execution proceedings based on negotiable instruments, Articles 62 to 72 of the law may also be applicable, as long as they do not conflict with the relevant provisions of the law concerning negotiable instruments.

The common provisions applicable in execution proceedings based on negotiable instruments are specified in Articles 176/a and 176/b of the Enforcement and Bankruptcy Law. According to these articles, they may be applied as long as they do not contradict the provisions specific to the execution proceedings based on negotiable instruments. These articles are applicable both in general execution proceedings via seizure and in execution proceedings based on negotiable instruments.

Article 176/a – (Added: 18/2/1965-538/92)
The execution office shall provide the creditor with a copy of the payment order in accordance with Articles 60 and 64.
A free of charge document is issued to the debtor stating that an objection has been made.
Multiple Debtors:

Article 176/b – (Added: 18/2/1965-538/92)
If the debtor in a bill of exchange, promissory note, or order-based instrument is one of multiple debtors and all are subject to bankruptcy, the creditor must make the same request (Attachment or bankruptcy) regarding all of them. In this case, if an objection is made by the debtor, the provisions of Articles 169, 169a, 170, or 174 will apply according to the nature of the request.
If one of the debtors under the same instrument is not subject to bankruptcy and the creditor wishes to pursue bankruptcy against those who are subject to it and attachment against those who are not, two separate requests for enforcement must be made. In this case, a certified copy of the instrument, validated by the enforcement officer, is added to one of the enforcement requests. The enforcement officer will write that the original instrument is in their possession on this certified copy.

  1. Attachment
  2. After the authorized holder (creditor) of a bill of exchange applies to the enforcement office with a request for enforcement, the enforcement office sends a payment order to the debtor. Once the payment order becomes final, the debtor is given a 10-day period to pay their debt. If the debtor fails to pay within this period, the creditor may request attachment from the authorized enforcement office within one year. For the creditor to request attachment, they must pay the necessary expenses for the attachment process to the authorized enforcement office (Enforcement and Bankruptcy Law, Article 59).
  3. After the creditor requests attachment, the enforcement officer, according to the records in Article 102 of the Enforcement and Bankruptcy Law, prepares an attachment report. This report is sent to the creditor via summons, and the creditor is asked to inform the office within 3 days if they have any objections or complaints regarding the attachment process. If the enforcement officer is unable to find any property of the debtor to attach, they will issue a certificate of insolvency. If the attached goods are insufficient to cover the debt, a provisional certificate of insolvency will be issued.
  4. Sale Request
  5. If, after the attachment through a bill of exchange enforcement, the attached property is not money, a sale request must be made by either the creditor or the debtor to the enforcement office. This is because the debt can only be settled with money equivalent to the debt amount. When requesting the sale, the creditor must also cover the costs related to the sale, just as they did with the attachment request. The sale request to the enforcement office must be made within 6 months from the end of the attachment for movable goods and within 1 year from the end of the attachment for immovable properties. Otherwise, the creditor may face the risk of losing their rights.

Sample Judicial Decisions Related to Enforcement Through Bills of Exchange

: Although the other appeals are not valid,

In the case where the creditor bank initiated an enforcement proceeding through the attachment of a negotiable instrument, the debtors argued that the instrument in question was provided as collateral for the credit agreement, that the creditor bank started another enforcement proceeding through the liquidation of a pledge from a different file for the same receivable, and that the negotiable instrument was also filed for enforcement, provided that no recidivism occurred in the collection process. They claimed that the instrument originated from the credit agreement and did not possess the characteristics of an independent obligation. They then applied to the enforcement court for the cancellation of the proceeding. The court ruled to reject the case on the grounds that the debtors failed to prove the claim that the instrument was a collateral note. Upon the debtors’ appeal, the Regional Court of Appeal concluded that the creditor bank had first initiated an enforcement proceeding regarding the mortgage right under Article 45 of the Enforcement and Bankruptcy Law (İİK), and that initiating an enforcement proceeding based on the negotiable instrument before determining that the pledge amount in the mortgage case was insufficient to cover the debt was inappropriate. This issue was deemed to concern public order and was examined ex officio. Therefore, the appeal of the debtors was accepted, the decision of the First Instance Court was overturned, and the enforcement proceeding based on the negotiable instrument was annulled.

In Article 45 of the Enforcement and Bankruptcy Law (İİK), it is stated that even if the debtor of a receivable secured by a pledge is one of the persons subject to bankruptcy, the creditor can only proceed with enforcement through the conversion of the pledge into money. The provision in Article 167 regarding bills of exchange, promissory notes, and checks remains unchanged. In the same law, Article 167 also stipulates that a creditor whose receivable is based on a check, promissory note, or bill of exchange, even if the receivable is secured by a pledge, can proceed with enforcement through the attachment procedure specific to negotiable instruments.

In the present case, it was noted that the creditor bank initiated enforcement proceedings through the attachment of negotiable instruments against A. Otomotiv İnşaat ve Pazarlama Ticaret Limited Şirketi, the beneficiary of the promissory note, and H.A. and Türkan A., the individuals involved. Upon reviewing the mortgage-based enforcement proceeding mentioned in the complaint petition, it was found that the main debtor and the owner of the mortgaged property were A. Otomotiv İnşaat ve Pazarlama Ticaret Limited Şirketi. In the notice of default supporting the enforcement, the complainant debtors H.A. and T.A. were listed as joint and several guarantors. It is observed that in the sample 6 enforcement proceeding, only the complainant debtor A. Otomotiv İnşaat ve Pazarlama Ticaret Limited Şirketi was pursued.

Although the debt may be secured by a mortgage, a creditor holding a negotiable instrument may proceed with enforcement through the attachment specific to negotiable instruments. However, if the creditor has already initiated enforcement by converting the mortgage into money for the same receivable, they have chosen this method of enforcement, and cannot proceed with enforcement through the negotiable instruments procedure for the same debt. This matter pertains to public order and is subject to an unlimited complaint. However, in our court’s practices, there is no decision indicating that this matter is considered ex officio by the court.

In light of these explanations, in the evaluation of the present case, the complainant debtors filed a complaint with the enforcement court after being served with the payment order in the sample 10 enforcement, claiming that the underlying document was a collateral instrument, not a standalone negotiable instrument, and that enforcement could not be pursued through the negotiable instruments procedure based on this instrument. To support their claims, they also indicated that a mortgage enforcement was initiated for the same debt. However, they did not raise the issue of duplicate enforcement. The first-instance court rightly rejected the objection, stating that the collateral claim was not proven. However, the Regional Court of Appeal ruled ex officio that a duplicate enforcement had occurred and decided to cancel the enforcement. Yet, the appellate review should have been limited to the petition and grounds for appeal, and the enforcement could not be canceled ex officio due to duplicate enforcement. Therefore, the Regional Court of Appeal’s decision to dismiss the appeal on its merits is erroneous, and the judgment issued is incorrect.

CONCLUSION: Upon acceptance of the creditor’s appeal objections, the decision of the Istanbul Regional Court of Appeal, 22nd Civil Chamber, dated 06.07.2021 and numbered 2021/283 E. – 2021/1961 K., is overturned for the reasons stated above, in accordance with Article 364/2 of the Turkish Enforcement and Bankruptcy Law (IİK) as amended by Law No. 5311, and Article 373/2 of the Civil Procedure Code (HMK) No. 6100. The pre-paid court fee shall be refunded upon request, and the file shall be sent to the Regional Court of Appeal that rendered the decision. The decision was made unanimously on 16.02.2022. (T.C. COURT OF CASSATION 12th CIVIL CHAMBER, E. 2021/8538, K. 2022/1907, Date: 16.02.2022)

It is not possible to initiate both enforcement through the liquidation of the pledge and enforcement through the special attachment method for negotiable instruments at the same time and without considering the order, in order to collect a claim that is secured by a pledge and also based on a negotiable instrument, provided that there is no repetition in the collection process.

(COURT OF CASSATION, ENBANC DECISION OF THE GRAND GENERAL ASSEMBLY, CASE NO: 2021/2, DECISION NO: 2023/1, DECISION DATE: 20.01.2023)

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