Complaints Against Actions of Enforcement Authorities

In the Enforcement and Bankruptcy Law system, the process of reviewing the legality of actions taken by the enforcement office and resolving disputes arising from these actions a "complaint ." As a public institution, the enforcement office may make mistakes, disregard legal provisions, or violate the rights of parties during the execution of enforcement proceedings. The complaint process is the most fundamental oversight mechanism used before the Enforcement Court to correct such irregularities.

Nature of the Complaint Procedure

A complaint is not a lawsuit, but a "judicial review" tool that examines the legality of enforcement proceedings. The primary purpose of a complaint is to ensure that the enforcement office's actions comply with the law and the circumstances of the case. Enforcement office procedures are, as a rule, subject to formal regulations. If the enforcement officer or clerk violates these formal regulations, the complaint process comes into play. For example, the seizure of property that cannot be seized, failure to serve notice to the debtor's address, or procedural errors in the sale process are all grounds for complaint.

Reasons for Complaint

In the Enforcement and Bankruptcy Law (EBL), grounds for complaint can generally be grouped under three headings:

1. The Action Being Contrary to Law: This refers to an action taken by the enforcement officer that is contrary to the relevant provisions of the Enforcement and Bankruptcy Law or to general legal principles.

2. Failure to Fulfill a Right: This refers to the refusal or failure of an enforcement office to perform an action it is obligated to take without a justifiable reason. For example, if an officer arbitrarily refuses to process a creditor's request for seizure of assets, this falls under this category.

3. Delaying the Process of a Right: This occurs when an enforcement office, while obligated to perform a certain action, unnecessarily prolongs the process, disregards legal deadlines, or leaves a file inactive.

Complaint Process and Time Limits

The complaint process is conducted before the Enforcement Court. The most critical aspect of the complaint procedure is the time limits. Since the principle of "speed" prevails in enforcement law, the complaint periods are quite short. The general complaint period is 7 days from the date the action is learned. This period is a forfeiture period, and complaints not filed within this time limit are rejected by the court without considering the merits.

However, in cases where the action is unlawful and concerns public order, or where the action should not be carried out at all, an appeal can be filed without any time limit. For example, the seizure of property that is not subject to seizure is subject to an appeal without a time limit.

Outcomes of the Complaint

If the Enforcement Court finds the complaint justified after its review, it will decide to annul or correct the process, or compel the enforcement office to carry out the process. The Enforcement Court supervises the enforcement officer's action through the complaint process; however, it does not make a decision on the merits of the debt between the parties. Accepting the complaint ensures that the erroneous action is rectified and helps to restore the enforcement process to a legal basis.

In conclusion, the appeal process is the most important protection mechanism granted to parties against the possibility of errors by the enforcement office. Due to the sensitivity of deadlines and its technical nature, operating the appeal process correctly is vital to prevent procedural errors and ensure the proper progress of the proceedings.

Subject of the Complaint:

In the Enforcement and Bankruptcy Law (EBL) system, a "complaint" is a review of the legality of actions taken by enforcement bodies (enforcement offices, enforcement officers, officials) or actions they should have taken but failed to take. The subject of the complaint is limited to "all activities carried out by the enforcement office using public authority." This review ensures that the compulsory enforcement system operates within legal limits and is free from arbitrariness.

The subject of the complaint can be examined in three main categories:

1. Illegality of Enforcement Office Procedures

All actions taken by enforcement officers must comply with the relevant articles of the Enforcement and Bankruptcy Law and general legal principles. If an action is contrary to the law, its annulment or correction can be requested through a complaint.

• Seizure Procedures: For example, the seizure of property that is legally prohibited from being seized (such as more than a quarter of one's salary, household goods, farmer's tools, etc.) is the most common subject of complaints.

• Notification Errors: The improper service of a payment order or sales notice constitutes the subject of the complaint. Violation of the provisions of the notification law means that the enforcement process is unlawful.

• Sales Procedures: Irregularities in the valuation process by the enforcement office, non-compliance with the terms of the sales announcement, or violations of auction rules are directly grounds for complaint.

2. Failure to Fulfill a Right

If an enforcement office fails to perform a legally mandated action, this becomes grounds for complaint. This includes the enforcement officer's misuse of discretionary power, such as "refusing to perform the duty" or "avoiding the action.".

• Request Rejection: The unlawful refusal by the bailiff of a creditor's request for seizure or sale, which is a legal right.

• Non-implementation of the Decision: The failure or incomplete implementation by the enforcement office of a decision issued by the Enforcement Court.

3. Delaying Processes

The complaint concerns enforcement agencies slowing down or failing to complete procedures without any justifiable reason, even though they are required to do so.

• Unnecessary Delay: A seizure request being held in abeyance for days despite being filed.

• Neglect of Correspondence: Unjustifiably delaying inquiries or correspondence with institutions (bank, land registry, traffic).

Matters that cannot be the subject of a complaint

Complaints are a procedure specific only to the actions of the enforcement office . Therefore, the following situations cannot be the subject of a complaint:

• The Essence of the Debt: The debtor cannot file a complaint by saying, "I do not have such a debt" or "This contract is invalid." These are matters for negative declaratory judgments or debt collection lawsuits to be heard in general courts. The Enforcement Court cannot examine the existence of the debt in terms of substantive law at the complaint stage.

• Discretionary Power: The discretionary power of the enforcement officer, within the limits granted to him by law, cannot be subject to complaint. However, if the officer uses this power unlawfully, arbitrarily, or maliciously, this situation may again be subject to complaint.

 Grounds for Complaint in Enforcement Law

In the Enforcement and Bankruptcy Law (EBL) system, complaints are a mechanism that oversees the activities of enforcement bodies. For an enforcement action to be subject to a complaint, it must lack a legal basis, be incomplete, or be carried out erroneously. In doctrine and practice, grounds for complaint are fundamentally classified under three main headings. These grounds reveal the extent to which the action of the enforcement officer or clerk is unlawful.

1. The Transaction is Illegal

This is the most common and obvious reason for complaint. It occurs when an action taken by the enforcement office is clearly contrary to the provisions of the Enforcement and Bankruptcy Law or other relevant legislation (Notification Law, Law of Obligations, etc.). If the enforcement office exceeds the limits set by law in carrying out an action, a complaint can be filed.

• Formal Irregularities: The enforcement officer preparing a sales notice that is not in accordance with the procedure, drawing up a seizure report that does not include the mandatory elements specified in the law, or conducting the valuation in a manner contrary to the methods prescribed by law.

• Legal Irregularities: Seizure of assets prohibited from seizure (Article 82 of the Enforcement and Bankruptcy Law), seizure of more than one-quarter of the salary, and seizure of vehicles essential for the debtor to continue their profession.

• Violation of Notification Law: The payment order being deemed served improperly when the debtor is not at their legal address, resulting in the enforcement proceedings becoming final.

2. Failure to Fulfill a Right

Enforcement authorities are obligated to fulfill the duties assigned to them by law. If an enforcement office unlawfully rejects a claim made by a creditor or debtor regarding a legal right, or refuses to process the claim, this constitutes grounds for complaint.

• Unlawful Refusal of Request: When a creditor requests an attachment on the debtor's assets, and this request meets the legal requirements, the bailiff refuses the request on the grounds that they lack "discretionary power."

• Non-implementation of Decisions: This refers to the failure of the enforcement office to implement a decision issued by an enforcement court or general courts, the failure to write the necessary documents for the execution of the decision, or the refusal to comply with the requirements of the decision.

• Violation of File Procedures: Restricting a creditor's right to request copies of files or failing to provide a document they are legally entitled to.

3. Delaying the Exercise of a Right

The enforcement office must carry out and finalize the procedures. However, in some cases, the officer does not refuse the procedure but delays it without any justification, leaving the file pending. This situation violates the creditor's expectation of "obtaining their rights as soon as possible" and the debtor's interest in "the swift conclusion of the proceedings.".

• Inaction: A seizure request remains "in progress" for weeks despite being filed, without any seizure order or actual seizure process being initiated.

• Correspondence Delay: The unnecessary postponement of electronic seizure requests that need to be sent to banks or land registry offices, even when there is no technical obstacle.

• Delaying Sale: This refers to the slowing down of the sale process of a seized property by the enforcement office, or irregular delays in setting a sale date, even though there are no legal obstacles to the process.

The Place of Complaint Grounds in Practice

These three fundamental grounds for complaint define the scope of the enforcement office's activities. The party filing a complaint must clearly state in their complaint which of these three grounds they are relying on.

Importantly, the grounds for complaint are not dependent on the parties' will. That is, if the subject of the complaint constitutes a violation of the law, the court may consider this on its own initiative (in cases concerning public order). However, the complainant is obligated to justify their grievance and explain which action (or inaction) of the enforcement office caused this grievance.

In conclusion, grounds for complaint against enforcement proceedings are a "legal balance" tool employed when the enforcement officer has not acted in accordance with the law, neglected their duty, or unnecessarily delayed the fulfillment of a right. Accurately identifying these grounds is the most important strategic move that can alter the course of an enforcement case.

Public Order in Enforcement Law and the Approach of the Supreme Court

In Enforcement and Bankruptcy Law "public order" is a set of fundamental rules that define the boundaries of litigation and enforcement proceedings, and cannot be altered even by the will of the parties. In the case of complaints before the Enforcement Court, regardless of the grounds for complaint put forward by the parties, the area where the court an ex officio (on its own initiative) investigation is primarily the issue of violations of public order. The Supreme Court, through its established precedents (customary decisions), has defined the scope of this concept and its impact on the enforcement process.

What is Public Order and its Place in Enforcement Law?

Public order refers to the rules that protect the fundamental structure of the state, the peace of society, and the justice underlying the legal system. In Enforcement Law, violations of public order include situations such as an action being clearly contrary to the mandatory provisions of the law, the action being taken by an unauthorized enforcement office, and the seizure of goods that are not subject to seizure.

In Supreme Court rulings, public order is directly linked to the "complaint period." Under normal circumstances, complaints are subject to a 7-day forfeiture period from the date of learning about the action. However, in cases where the action is contrary to public order, the complaint period is unlimited. This means that even if months or years have passed, a person can always bring this violation to the Enforcement Court.

The Supreme Court's Approach to the Issue of Violation of Public Order

The established jurisprudence of the Supreme Court has clearly defined which situations constitute a violation of public order. According to Supreme Court rulings, the main situations that violate public order are as follows:

1. Jurisdiction Rules: It is contrary to public order for an enforcement office to conduct proceedings in a location where it lacks jurisdiction or to violate the rule of absolute jurisdiction. Lack of jurisdiction means that the enforcement office has exceeded its area of ​​responsibility.

2. Immunity from Seizure (Article 82 of the Enforcement and Bankruptcy Law): The right to "immunity from seizure," granted by the state in accordance with the principle of a social state to enable the debtor to continue living, is a matter of public order. The Supreme Court considers the seizure of an asset prohibited from seizure to be invalid, even if the debtor waives the right.

3. Irregularity in Notification: Due to the sanctity of the right to defense, failure to serve notification properly (especially in cases where it is understood that the notification did not reach the debtor) harms public order. The Supreme Court of Appeals considers the irregularity of notification as a perpetual ground for complaint, combining it with the concept of "date of learning".

4. Auction Processes: During the cancellation phase of an auction, acting contrary to the principle of open and transparent sale (for example, conducting the auction secretly) constitutes a violation of public order.

The Impact of the Court of Cassation's Customary Decisions

The most important precedent established by the Supreme Court in our legal system "Unlimited Complaint" mechanism.

• Principle of Ex Officio Review: According to Supreme Court rulings, if an action is contrary to public order, the Enforcement Court judge must annul the action as soon as they notice this violation while reviewing the file, regardless of whether the parties have filed a complaint. The judge cannot remain silent by saying, "the parties did not complain about this."

• Prohibition of Waiver: The Supreme Court of Turkey holds that in matters concerning public order (e.g., exemption from seizure), agreements or contracts between parties regarding the "seizability" of property cannot override mandatory legal provisions. In other words, prior waiver of exemption from seizure is invalid.

• Principle of Honesty: The Supreme Court does not consider the misuse of the right to complain in violation of the "principle of honesty" (abuse of right) as a violation of public order; however, even if the complaint period has expired, it disregards the time limit if the nature of the event disrupts public order.

A Practical Example: The Supreme Court Perspective

For example, when the seizure of a debtor's residence (claim of domicile) is involved, the Supreme Court links this to the "debtor's right to housing." If the debtor, knowing that the property could not be seized at the time of the seizure, did not file a complaint within the legal period, the Supreme Court strikes a balance between "public order" and "legal security." However, in a case where no notification was made, all actions of the enforcement office are considered contrary to public order by the Supreme Court.

TC.

SUPREME COURT

12th LAW DIVISION

E. 2011/11811

K. 2011/30041

Date: 22.12.2011

CASE: Upon the creditor's request for appellate review of the court decision dated and numbered above, within the prescribed time limit, the file concerning this matter was sent from the local court to the appellate court, and after being read and considered, the following was decided:

DECISION: The request to annul an enforcement officer's action due to its being contrary to law or the circumstances, by filing a complaint with the enforcement court, is generally subject to a 7-day period. The complaint period begins from the day the action in question is learned (Article 16/1 of the Enforcement and Bankruptcy Law). There are two important exceptions to this rule:

1- A complaint may be filed at any time due to the failure to fulfill a right or its unjustified delay (Article 16/2). The purpose of this provision is to protect those concerned against the enforcement officer's avoidance of fulfilling a right.

2- Complaints can be filed against transactions that are contrary to public order without any time limit. This principle has been adopted in legal doctrine and accepted in the practice of the Supreme Court of Appeals. Transactions made in violation of "mandatory provisions" established to protect the interests of the debtor, third parties, and the public are contrary to public order. Complaints can be filed at any time against these transactions (Prof. Dr. Baki Kuru, Enforcement and Bankruptcy Law - 1988 Edition, Volume: 1, p. 94 - Supreme Court of Appeals, January 22, 2003, 2003/12-17 E. 2003/29 K.). In the concrete case, the creditor Viyabank Ltd. It has been understood that enforcement proceedings were initiated by the representative based on a limited mortgage, through the foreclosure of the mortgage, and that after the execution order (example no. 6) was served on the debtor Nedim Benaroy on January 27, 2008, he applied to the enforcement court on February 6, 2008, after the expiry of the legal 7-day period, claiming that the mortgage document in question did not contain an unconditional acknowledgment of debt, was not based on a current account or credit relationship, could not be the subject of the execution order, and that all ancillary charges exceeding the mortgage limit should be cancelled. The court decided to cancel the execution proceedings on the grounds that the collateral mortgage was not based on a current account or credit relationship, and that in this case, it could not be the subject of execution proceedings without a lawsuit being filed in a general court and the amount of the debt being determined. The grounds for complaint, other than exceeding the mortgage limit, are subject to the 7-day period as per the aforementioned legal provision. Therefore, while the court should have dismissed the claims other than the one concerning the exceeding of the mortgage limit due to being time-barred, it is incorrect to examine the merits of the case and reach a written conclusion. On the other hand, since the amount of the debt is uncertain, the amount for which the real estate can serve as collateral can be limited by the limit specified in the mortgage agreement table, as the maximum amount mortgage established as security for a future or likely receivable is a predetermined amount. In this case, it is not possible for the total amount of the debt secured by the mortgage, consisting of the principal debt, interest, enforcement costs, and ancillary charges agreed upon by the parties, to exceed this limit. Upon examination of the mortgage agreement tables subject to the enforcement proceedings, it was observed that the mortgages were made in the form of limit mortgages. Since the debtor objected to the enforcement proceedings exceeding the limit, and according to our Chamber's established jurisprudence, conducting enforcement proceedings exceeding the limit is a matter of public order and subject to an indefinite appeal period, the court should have examined the issues mentioned above to determine whether the amount requested in the enforcement proceedings exceeded the limit of the mortgage and rendered a decision accordingly. However, the decision rendered in writing with insufficient examination is also incorrect.

CONCLUSION: The creditor's appeal is partially accepted, and the court decision is REVERSED for the reasons stated above, in accordance with Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure, by unanimous decision on December 22, 2011.