Debt Collection with Ways of Enforcement Proceeding
Debt Collection with Ways of Enforcement Proceeding
According to our law, one of the ways to collect a debt is to initiate enforcement proceedings at the request of another creditor to file a lawsuit against the debtor who has not paid any debt, and to request the debtor to negotiate with the debtor by seizing his movable and immovable properties. As it can be understood from here, when the debtor fails to fulfill his obligation to pay his debt due to a debt relationship (mostly from the contract), he cannot be subject to a prison sentence for his debt, except in exceptional cases, he will be held liable only for his assets.
Enforcement Proceeding with Judgment
If the creditor’s right is not fulfilled or violated according to the Enforcement and Bankruptcy Law, if the creditor requests the prevention of this violation or the payment of his right by applying to the court, if the debtor does not fulfill the debt automatically, pursuant to the decision (judgment) given by the court in favor of the creditor, It can be initiated. Thus, the creditor applies to the enforcement office and an enforcement order is sent to the debtor. In order for the creditor to pursue enforcement with a judgment, he / she must have a court order or a document deemed as a court order by the law. The decision to be executed is the signed and sealed version of the reasoned decision of the court.
The debtor’s defense and objection to the prosecution is limited as there is a previous court judgment on the enforcement process. As a rule, the debtor cannot stop the proceedings by opposing the enforcement order sent to him by the enforcement office.
The subject of the debt that may be subject to enforcement may be giving money and guarantee; It can also be the delivery of movable property, delivery of the child, establishing a personal relationship with the child, evacuation and delivery of the immovables. It should also be stated that the creditor is obliged to apply for enforcement with a judgment, since the subject receives a claim other than money and security. However, for the receivables, the subject of which is money, enforcement proceedings without a judgment can be applied without receiving a decision or filing a lawsuit.
Enforcement Proceeding without Judgment
Enforcement proceeding without judgment, which is a part of enforcement law, is called enforcement proceeding that is not based on a decision or a document in the nature of a judgment. The main subject of the enforcement proceedings without notice is the receivables from the guarantees and the money receivables. No court decision is required in enforcement proceedings without an announcement. The creditor can apply directly to the enforcement office and initiate proceedings against the debtor. Since there is no pre-trial judgment and therefore a court order in the enforcement proceeding without an opinion, the debtor may object to the prosecution initiated against him and prevent the conclusion of the proceedings.
Stages of enforcement without judgment; request to issue enforcement proceedings, payment order, distraint, sale of distrainted goods and giving money to the creditor. Enforcement proceedings without judgment is divided into three as; foreclosure, foreclosure based on bills of exchange, evacuation of rented immovables by way of enforcement.
Enforcement Proceeding Through Foreclosure
The creditor who does not have bills of exchange (check, bond, policy) or judgment (court’ decision) can only be followed through general foreclosure, if the receivable is not delivered by mortgage or pledge. In this respect, it is not necessary to keep the creditor in the proceedings by means of foreclosure. A person who cannot be taken from the debtor in any way can resort to this route. However, in this case, in order for the follow-up to be successful, the debtor must not object to the payment order sent to him by the enforcement office within 7 days. If the debtor does not object to the incoming payment order, the follow-up becomes final and enforcement is applied. With the finalization of the follow-up, the creditor has the right to request foreclosure. After that, the creditor converts the seized property into money. At first glance, the foreclosure route can only be seen as a judged way for the creditor to easily get his credit. However, in addition to the convenience provided to the creditor through this follow-up, some facilities were also provided to the debtor. Since it is easily exploited by both the debtor and the creditor, various ways such as objection to debt and denial compensation are provided in the law in order to protect the balance of interests by preventing them. To clarify this situation a little more, the debtor has been given the right to object to the debt against the proceedings initiated due to an unborn credit or not based on a valid reason. As a matter of fact, the debtor who faces execution proceedings even though he does not have any debt, will have stopped the unjust follow-up initiated against him by using his right to appeal the debt granted to him/her. However, the balance may also be deteriorated against the creditor by appealing to the debt for the receivable based on a just cause. In such a case, the creditor shall apply to the Enforcement Court for the annulment of the objection within 6 months or to file an action for annulment of the objection in the general courts within 1 year. If the objection is unfounded and unfair in the case, the proceedings will continue from where it left off, and a denial of execution compensation is awarded against the debtor.
Foreclosure Based on Bills of Exchange
Enforcement and bankruptcy law specifically regulates the pursuit by means of foreclosure based on bills of exchange by separating it from other follow-up methods. Bills of exchange are negotiable instruments according to the Turkish Commercial Code and are specified in a limited number in the law, there are only three. These are: Bonds, Policies and Checks. If the document on which the follow-up receivable is based is not one of these three valuable documents, it cannot be pursued by means of foreclosure based on bills of exchange. One of the main features that distinguish bills of exchange from other ordinary bonds is their ability to be circulated.
In order to meet the needs of commercial life, provisions have been made to ensure easier circulation of bills of exchange. The most basic feature of the foreclosure path specific to bills of exchange, among other follow-up methods, is the provision of provisions that allow the follow-up to proceed faster and easier. Although the follow-up method specific to the bills of exchange contains more privileged provisions in terms of the creditor than the follow-up by general foreclosure, the creditor is free to choose the follow-up method he wishes. Again, a creditor depending on the bills of exchange he will receive does not have to apply for a pledge first, even if the receivable is also provided with a pledge. This situation constitutes an exception to the obligation to apply for a pledge first. In proceeding based on bills of exchange, the creditor has to present the original of the bill of exchange to the enforcement office. If the bailiff sees that the bill is a bill of exchange and is due, he/she sends a payment order to the debtor. The debtor must pay the debt within 10 days to the bank account of the enforcement office written on the payment order. If the debtor claims that the deed, which is the basis of the proceedings, does not qualify as a bill of exchange, the creditor who is pursuing the proceeding does not have the right to apply for this method, and the deed is not due, he must complain to the enforcement court. If he claims that the signature on the bill does not belong to him, that he is not a debtor, that he has paid the debt, that the receivable is expired or that the enforcement office is unauthorized, he must appeal to the enforcement court within 5 days.
Evacuation of Rented Immovables
Enforcement proceedings can be initiated without the need for any judgment on the way of execution without judgment, which is arranged exceptionally. It is a very laborious and lengthy process by the plaintiff to be able to receive a release order by a court decision. The landlord may apply for enforcement proceedings without judgment in order to minimize this period and, in cases where the rental fee is not paid, can send an order for the evacuation of the property against the debtor. Marhan Law Office, with its expert lawyers in the field of Enforcement and Bankruptcy Law and debt follow-up, has the necessary method, technical knowledge and experience for the collection of your receivables, and from the moment you submit your request to our office, before you apply for legal remedies, you will be assessing whether your receivables can be collected peacefully, on the other hand. sending a warning letter to avoid court costs and agreeing a payment plan by phone calls; We are ready to serve our clients in the collection of your receivables by keeping the other party under pressure and applying for enforcement proceedings or debt proceedings in accordance with the detailed legal procedure described above, with the warning that legal action will be taken if payment is not made.