The word “Execution” literally means “doing, fulfilling, running a business”. Legally, enforcement is “the state ensuring the debtor fulfilling his duty which he/she is obliged to do or pay against the creditor.”
In case the debtor does not fulfill the debt he/she is obliged to fulfill for some reason, the creditor may pursue his/her rights for the debtor to fulfill his/her debt within the limits of the “Execution and Bankruptcy Law”. There are “Executive and Bankruptcy Directorates” and “Enforcement Courts” established to enable the creditor receiving his/her receivables through the State. Upon the creditor applying to these institutions, the receivables shall be collected from the debtor as a conclusion of the execution of various procedures and shall be given to the creditor.
“An execution proceeding” is the legal action that the creditor starts before the Executive Directorate to collect the receivables from the debtor by using the power of the state.
Execution proceedings are basically divided into 3 :
1)Proceeding without judgement
2)Proceeding based on bill of exchange
3)Proceeding with judgement
Proceeding Without Judgement
The subject of proceeding without judgement is money and security receivables. A creditor who does not have a bill of exchange (check, deed, policy) or a judgement (court order) and if the creditor is not provided with a mortgage or pledge can only start a proceeding without judgement. Since the creditor does not have a bill of exchange or a judgement in his/her hands in such proceeding, in other words, there is no strong evidence proving the presence of the creditor’s receivable, there is a situation open to be abused by the creditor. For this reason, the law made it easier for the debtor to stop the proceeding by objecting against this proceeding compared to other kind of execution proceeding.
In proceeding without judgement, the debtor can either pay the debt stated in the payment order sent to him/her by the enforcement office or make an objection. If the debtor makes an objection within 7 days since the notification of the payment order to him/her, the proceeding stops. In this regard, the rightfulness or wrongfulness of the debtor shall not be investigated. In this case, the creditor has the right to file a lawsuit for the cancellation of the objection and the creditor should file a lawsuit which is either the cancellation of the objection file before the General Courts within 1 year since the notification of the objection to the creditor or the annulment of the objection file before the Execution Courts within 6 months since the notification of the objection to the creditor. If it is revealed within the cancellation of the objection file is that the objection is unfair, the proceedings shall be continued and enforcement denial compensation not less than 20% shall be requested against the debtor.
The debtor against whom a proceeding without judgement has been filed, may object to jurisdiction (after the execution proceeding started against the debtor, he/she may object against this proceeding stating that the enforcement office does not have jurisdiction and in the proceedings without judgement, the enforcement office that has jurisdiction is the one located at the residence address of the debtor at the moment of starting proceedings.), debt and signature. If the debtor does not pay his/her debt and does not object against the payment order, he/she has to declare his/her properties which is in accordance with truth within 7 days. If the debtor does not make a declaration of property or makes a false declaration of the property, he/she shall be punished upon the complaint of the creditor.
In summary; the stages and the process of proceeding without judgement start upon the creditor’s request that shall be submitted to the enforcement office and upon this proceeding request, the enforcement office sends a payment order to the debtor. In case the debtor does not object to this payment order or in case the creditor files a cancellation/annulment of the objection case and the objection is found to be unfair by the court, the proceeding becomes finalized. After the proceeding is finalized, the sequestration phase shall be started. Sequestration is taken into consideration if requested by the creditor and the creditor loses his/her right to request sequestration if it is not requested within 1 year from the date of notification of the payment order.
After the sequestration request, the sale of this property must be requested. In order to make this request, the legislator sets a certain time limit out. This period is 6 months since the sequestration for movable property and 1 year since the sequestration for the immovable property, as specified in the Article 106 of the Execution and Bankruptcy Law. The debtor’s receivables from third parties are also accepted as movable properties and are subjected to this 6-month period.
It is not necessary to be a first-degree creditor to make a sales request. “Every creditor can request sale on behalf of the degree which he/she is a member of.” (Article 107 of the Execution and Bankruptcy Law) With the sales request, an advance on expenses must be deposited in order to cover the sales expenses.
In accordance with Article 110 of the Execution and Bankruptcy Law, “If the sale of a property is not requested within the legal period or if the required expense is not deposited within fifteen days as per the decision to be made by the executive director, or the request is withdrawn and is not repeated within the legal period, the sequestration on the property shall be removed. The request for the sale of sequestrated property can be withdrawn once … The creditor who caused the removal of the sequestration shall be responsible for all expenses related to that property, such as the sequestration and storage.”
In case the conditions stated under the law are met and if the debtor undertakes to pay the debt regularly in instalments before the sale request and if he/she pays the first instalment immediately, the execution process stops. These conditions are; the fact that the debtor’s property in sufficient amount has been sequestrated, that every instalment to be paid is not less than a quarter of the total debt, the instalments are decided to be paid from month to month and the period given is not more than three months. In case of one of the instalments is not paid on time, the execution process and deadlines continue to proceed from where they left off (Article 111 of the Execution and Bankruptcy Law).
Movable goods shall be sold within two months after the sale request (Article 112 of the Execution and Bankruptcy Law). However, it is possible to perform the sale upon the request of the debtor without waiting for the creditor’s request (Article 113 of the Execution and Bankruptcy Law). The sale shall be made by auction. The place, day and hour of the first and second auction shall be announced in accordance with the procedures specified in the Law. The auction starts by tendering electronically (Article 114 of the Execution and Bankruptcy Law). The first and second tender is started by the execution officer with the highest bid submitted electronically, at the place, day and time specified in the announcement. It is needed that the increase value should reach the 50% of the property’s estimated value and if the privilege of the receivables of the party who requests sales is provided with these property, the receivable with the privilege should be more than the total value of the property and should exceed the costs of converting into money and sharing the money transactions. If any buyer could not be found or the amount stated in this article could not be reached the first tender, the sale shall be postponed by the execution officer. If any buyer could not be found or the conditions set under this Article could not be met in the second tender, the sale request falls. (Article 115 of the Execution and Bankruptcy Law).
The immovable property shall be sold through auction by the enforcement office within three months of the sale request. The place, day and hour of the first and second tender shall be duly announced. In the announcement to be made, the type, nature, important qualities, estimated value, location of the property to be sold; the location, day and time of the first and second tender; the requirement of the fact that those who would participate in the auction must deposit a deposit or a letter of guarantee of a national bank at the rate of twenty percent of the estimated value of the seized property; the fact that where and how the other information can be obtained shall be written. The auction starts with tendering electronically (Article 126 of the Execution and Bankruptcy Law). The sales price shall be paid in advance. However, the execution officer may give the buyer a deadline not to exceed ten days (Article 130 of the Execution and Bankruptcy Law). Unless the tender is finalized, the tender price shall not be paid to the creditors.
If the sales amount is not enough to fully pay the receivables of all creditors, the enforcement office makes a row of creditors. This row shall be notified to the concerned parties. Objection may made against this row within seven days since the date of notification.
THE EVACUATION OF THE LEASED REAL ESTATE
If the enforcement proceedings are related to ordinary lease or building lease and if the creditor requests so, it can be added to the payment order sent that the debtor may be requested from the enforcement court to remove debtor from the leased thing after the legal notice and the warning written in the Articles 260 and 288 of the Law of Obligations. The debtor must report the reasons of his/her objection within seven days since the notification. If the debtor does not explicitly reject the lease agreement in this objection, he/she shall be deemed as accepted the contract. The objection stops the proceeding. The creditor who does not request the annulment of the objection within six months from the notification date of the objection cannot file another proceeding without judgement due to the same receivable again. (Article 269 of the Execution and Bankruptcy Law).
However, if the debtor does not object and does not pay the lease debt within the given period, the Enforcement Court decides to evacuate him/her upon the request of the creditor to be made within six months from the end of the warning period (Article 269/a of the Execution and Bankruptcy Law).
If the debtor refuses the lease agreement and the signature on the contract which is attributed to him, if the creditor’s request is based on an agreement which is issued by a notary public or which the signature is approved by a notary public, the creditor may request the annulment of the objection and the eviction of the leased due to the fact that the money is not paid within the warning period from the execution court (Article 269/b of the Execution and Bankruptcy Law).
If the debtor does not refuse the agreement but claims that the rent is paid or cannot be requested due to other reasons or he/she requests set off; he/she is obliged to prove the objection reasons and his/her will through a document that is issued by a notary public or which the signature is approved by a notary public or acknowledged by the creditor or a receipt duly issued by the official institutions and authorities in accordance with their power and procedure. The evacuation decision of the Enforcement Court shall not be waited to be finalized before actualizing. However, for evacuation, ten days since the date of notification or announcement of the decision to the debtor shall be waited to pass. (Article 269/c of the Execution and Bankruptcy Law).
The evacuation of a property which is leased with a contract may be requested within one month after the termination of the lease period by submitting the contract to the execution office. The execution officer issues an evacuation order and orders the evacuation and delivery of the property within fifteen days. In this evacuation order, it should be written that if the debtor has any objection, he/she should apply to the execution office within seven days or in otherwise, if he/she does not live with his/her own will, he/she would be evacuated by force (Article 272 of the Execution and Bankruptcy Law). In case of objection, the evacuation proceeding stops. The lessor has the right to request the annulment of the objection before the execution court. If the evacuation request is based on a contract issued by a notary public or which the date and signature is approved by a notary public or which is acknowledged and if the tenant cannot show any document related the lease agreement is renewed or extended which is in the same strength and nature, the objection shall be annulled. Otherwise, the request for the annulment of the objection shall be rejected (Article 275 of the Execution and Bankruptcy Law).