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June 29, 2022

Period For Creditor To Claim Attachment In Case Of The Debtor’s Objection To The Proceeding

Criminal law
Reading Time: 5 minutes

Enforcement law is, first of all, a formal branch of law, and the constraints in the law are of greater importance than the      material law itself. In so far, the formal legal arrangements stipulated by the 2004 Execution and Bankruptcy Law (“EBL” or “Law”), especially the      period of limitations, need to be handled carefully in terms of both the debtor and the creditor of an enforcement proceeding. For this reason, in this article, we will examine the period of the creditor’s request for attachment in case of objection to the debt in the proceedings through general attachment, which can cause      several problems for the parties in practice due to the gap in the provision of article 78/II of the EBL.

In the teaching, the concept of proceedings through general lien refers to enforcement proceedings that are initiated for money or collateral receivables      that are not based on a judgment or bill of exchange     . In accordance with that, in this article, the concept of enforcement proceedings will be used to correspond to proceedings through general attachment. The biggest feature that distinguishes the proceedings through general attachment from other types of enforcement proceedings is that it provides the debtor with the opportunity to object and/or expands the debtor’s objection possibilities, thus allowing the proceedings to be stopped by objecting to the debtor.

By      initiating an      enforcement proceeding     , the creditor aims to secure a money or security debt through foreclosure; Therefore, it is possible to say that the purpose of the creditor by initiating enforcement proceedings is to place a lien on the debtor’s assets and to finalize these liens. However, as mentioned above, the debtor may suspend the proceedings by objecting to the debt and/or signature in accordance with the EBL article 62 and its continuation provisions. In such a case, in order to ensure that the foreclosure is finalized, the creditor may seek the annulment of the objection, if the conditions are met, or request the annulment of the objection by resorting to litigation. On the other hand, due to the gap in Article 78 of the Law, after the debtor’s objection, the period within which the creditor can request foreclosure is controversial and may cause various problems in practice. Therefore, in the event of an objection, the period of requesting foreclosure emerges as an institution that should be handled delicately.

According to provision 78/II of the Law titled “Duration to claim foreclosure” which regulates the period within which the creditor can demand a lien on the debtor’s assets;

The right to demand lien expires after one year has passed from the date of notification of the payment order. In the event of an objection or lawsuit, the time elapsed from the occurrence of these until the finalization of the judgment or, in case the creditor and the debtor make installment agreements at the enforcement office, until the breach of the installment agreement is not taken into account.”

Accordingly, the right of the creditor to demand attachment is clearly regulated in the Law, in which the payment order begins with the receipt of notification by the debtor, and leaves no room for doubt.

On the other hand,      the case where the debtor objects to the payment order, the wording of the Law is not clear in terms of the date from which the 1-year period of disqualification will be deemed to have stopped. Since      the legal institutions that the concepts of objection and lawsuit represent in the provision are controversial in the doctrine, and in practice, it may lead to the emergence of different practices before different enforcement offices.

The      prevailing view, both in doctrine and in high court decisions, is that the concept of objection refers to the application of the creditor for the annulment of the objection before the enforcement courts, and the concept of litigation refers to the action for the annulment of the objection to be substituted before the general courts. If this opinion is accepted,      the finalization of the judgment given in the application for the annulment or annulment of the objection made by the creditor should be waited. However, as it is often seen in practice, the final decisions taken as a result of the proceedings for the revocation or annulment of the objection may constitute the basis for the continuation of the proceedings without waiting for the finalization, unless the debtor has an application for the suspension of execution.

Another criticism brought to this view is that, as is frequently encountered in practice, in case the debtor’s objection is notified to the creditor late or not at all, the creditor cannot resort to the remedies for the revocation or annulment of the objection within the 1-year lien demand period granted to the creditor by the Law. In such a case, although the creditor may request the renewal of the periods by submitting a request for the renewal of the follow-up in the light of the EBL article 78/final provision, the renewal fee may be incurred by the creditor.

The second opinion is that the concept of objection covers the objection made by the debtor to the payment order. If this opinion is accepted, it is obvious that there will not be a problem such as the expiration of the 1-year lien application period just discussed. On the other hand, it is accepted that concluding only the objection of the debtor will not be compatible with the      intendment of the Law, since it will render the term “litigation” in the Law      ineffective.

Another opinion regarding the disclosure of the provision of EBL Article 78/II      suggests that if the debtor objects, the creditor may request a lien from the notification of the objection to the creditor, and if there is no objection, from the notification of the payment order to the debtor. With this view, it is seen that a legal result is attached to the notification rather than the concepts of objection and lawsuit in general. Although it can be thought that it is compatible with the      intendment of the Law, it is an opinion that has been criticized by asserting the fact that it      deems the institution of      lawsuit almost meaningless, which is clearly governed by article 78/II of the EBL.

Finally, within the doctrine it is also argued      that the creditor can request foreclosure once the enforcement proceedings are finalized, without discussing the concepts of objection and lawsuit separately. Although it presents a logical integrity in general, it is difficult to agree with this view as it contradicts the mandatory provision in the Law article, which regulates that the period for demanding attachment will start from the notification of the payment order to the debtor.

Despite all the criticisms, in      order to fill this gap in the Law, the relevant legal departments of the Supreme Court adopt the first opinion and argue that the concepts of objection and lawsuit correspond to the legal remedies to be applied by the creditor against the debtor’s objection to proceedings. As a matter of fact, the Supreme Court of Appeals General Assembly clearly stated in a recent decision;

[1]“From the concept of “objection” specified in Article 78 of the Law, it is undoubtedly necessary to understand that the request for the annulment of the objection made to the enforcement court pursuant to Articles 68-68/a of the EBL is understood, and from the concept of “litigation” written in the same article, the annulment of the objection brought to the general courts in accordance with Article 67 of the EBL.”

It clearly stipulates how this gap in the Law should be understood.

In conclusion, although the interpretation of EBL article 78/II is a matter that has been discussed many times both in practice and in doctrine, it is possible to say that the subject has been clarified with the aforementioned decision of the Supreme Court of Appeals General Assembly. Indeed, if this opinion is accepted, this interpretation is largely compatible with the spirit of the Law, since the creditor submits a renewal request and there will be no loss of rights other than the expenses that will arise from it.

[1] Yargıtay Hukuk Genel Kurulu’nun 2017/12-749 Esas ve 2021/992 Karar sayılı, 14.09.2021 tarihli ilamı

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