Execution Proceedings Without a Court Order

Enforcement law, in general, is the stage that follows substantive law. Since self-help is prohibited under modern legal rules, this institution has become necessary, and enforcement law primarily aims to satisfy the creditor. Partial enforcement is possible in two ways: with and without a court judgment. Enforcement with a court judgment is used for claims other than monetary and collateral claims. The aim of enforcement with a court judgment is to enforce a court decision. If the creditor's claim relates to money or collateral, they will resort to enforcement without a court judgment.

Types of Execution Without a Court Judgment:

• Enforcement through General Attachment Proceedings
• Collection of Monetary Receivables Arising from Subscription Agreements
• Attachment Procedure Specific to Negotiable Instruments
• Eviction of Leased Properties

• What is enforcement proceedings through general attachment? What options do the creditor and debtor have?

In Turkish law, compulsory enforcement begins with the creditor's request for enforcement. According to Article 58 of the Enforcement and Bankruptcy Law, the sole responsibility of the enforcement officer in response to the request is to prepare a payment order. In this case, the debtor may file an objection to stop the enforcement proceedings within 7 days of receiving the payment order. If this period is missed due to unforeseen circumstances, and there is no other legal recourse, a delayed objection may be filed with the enforcement court within 3 days of the cessation of the circumstances causing the delay; in this case, the proceedings do not automatically stop, and the court must make a decision to that effect. The debtor may object to either the signature or the debt itself. If the objection is to the signature, it must be stated separately and explicitly. All objections other than those to the signature are considered objections to the debt. It is important to note that if a partial objection is involved, it must be stated separately and explicitly. According to the jurisprudence on this matter , "If the debtor does not indicate the amount of the debt he is objecting to in his objection, in accordance with Article 62/4 of the Enforcement and Bankruptcy Law, the objection is not valid. The objection is deemed not to have been made at all. The payment order also becomes final for the entire debt. However, if the creditor has initiated enforcement proceedings for more than one debt, and the debtor objects to some of these debts by name without stating the amount, the partial objection is valid because the amount of the objected debt can be understood from the payment order."[1]

Upon the debtor's objection, the creditor, in order to continue the proceedings and thus have the objection dismissed, must either request the lifting of the objection (within 6 months of the notification of the objection to the creditor) or its annulment (within 1 year of the notification of the objection to the creditor).

• If the debtor objects to the debt and the creditor possesses the documents specified in Articles 68 and 68-b of the Enforcement and Bankruptcy Law, the definitive lifting of the objection can be requested from the enforcement court.
• If the debtor objects to the signature, the objection may be temporarily lifted. If such a temporary lifting decision is made, the debtor's only option is to file a lawsuit to be relieved of the debt. The only condition is that a security deposit equal to 15% of the disputed amount must be provided as a prerequisite for filing the lawsuit.
• If the creditor does not possess the documents listed in Articles 68 and 68-b, they will file a lawsuit for the annulment of the objection in the general courts.

When the enforcement proceedings are finalized, the creditor will again request the commencement of the seizure phase. At this stage, the debtor's obligation is to declare his assets. If the creditor knows the debtor's assets, he is not obliged to wait for the debtor to fulfill this obligation.[2] The debtor must declare his assets either within 7 days of the notification of the payment order or, if he has objected to the payment order, within 3 days of the notification of the decision rejecting his objection.

In conclusion, the process by which a creditor pursues enforcement proceedings without needing a court decision regarding the debtor's claim for money and security is called non-judgmental enforcement, or in other words, general attachment. According to the jurisprudence established by the Supreme Court, it would be contrary to the principle of good faith for a person who has a judgment to resort to non-judgmental enforcement.[3] With the request for enforcement, a payment order will be issued to the debtor; the enforcement will be finalized according to the debtor's behavior. However, attachment and subsequent stages can only be proceeded with after the enforcement is finalized.

[1] (Closed) 15th Civil Chamber, 2011/7554 E., 2012/4746 K. https://karararama.yargitay.gov.tr/ (Access Date: 07.04.23)

[2] Hakan Pekcanıtez/Muhammet Özekes, Practical Studies in Enforcement and Bankruptcy Law, 20th Edition, Istanbul: Onikilevha Publishing, 2021, p. 75.

[3] 12th Civil Chamber, 2018/2718 E., 2018/5897 K., https://karararama.yargitay.gov.tr/ (Access Date: 07.04.2023)