Enforcement Lawyer

An unpaid debt and an unexpected payment order both set off a process that runs on short time limits. As an enforcement lawyer in Mersin, I provide legal support both to creditors who want to collect what they are owed and to debtors against whom enforcement proceedings have been started. In enforcement law, most time limits are measured in days; a missed time limit can lead to the loss of a right without the merits of the dispute ever being examined. For this reason, choosing the right type of proceedings for the creditor, and deciding what to do on the day the payment order is served for the debtor, directly affect the course of the process.

What Does an Enforcement Lawyer Help With?

• Starting and conducting enforcement proceedings without a judgment, based on a judgment, and based on negotiable instruments
• Collecting claims arising from cheques, promissory notes and bills of exchange
• Objections to payment orders and applications against execution orders
• Continuing proceedings halted by an objection through an action to annul the objection or a request to remove the objection
• Negative declaratory actions against unfounded proceedings, and actions for restitution of money paid without being owed
• Following up the attachment, valuation and sale stages
• Complaints to the enforcement court regarding exemption from attachment and actions of the enforcement office
• Precautionary attachment, and proceedings for the enforcement of pledges and mortgages

How Do Enforcement Proceedings Start?

Enforcement proceedings start when the creditor applies to the competent enforcement office (icra dairesi) with a request for enforcement. If there is no court judgment, enforcement without a judgment (ilamsız takip) is used: a payment order (ödeme emri) is sent to the debtor, and if the debtor does not object within the time limit, the proceedings become final. If the claim is based on a court judgment or a document having the force of a judgment, enforcement based on a judgment (ilamlı takip) is used and an execution order (icra emri) is sent to the debtor; for money claims, the debtor must pay within seven days of service of the execution order. For cheques, promissory notes and bills of exchange, there is a special procedure for negotiable instruments (kambiyo senetleri); for claims secured by a pledge or mortgage, there are proceedings for the enforcement of the pledge (rehnin paraya çevrilmesi).

Which route to choose depends on the document you hold, the debtor’s assets and the likelihood of an objection. If collection of the claim is at risk, and the conditions are met, a precautionary attachment (ihtiyati haciz) order can be requested from the court before or together with the proceedings in order to try to prevent the debtor from disposing of their assets. For details on preparing the request for enforcement, determining the competent enforcement office and the stages of the process, see the enforcement proceedings page.

Enforcement Proceedings for Cheque and Promissory Note Claims

For claims based on cheques, promissory notes (bono, commonly called senet) and bills of exchange (poliçe), the Enforcement and Bankruptcy Law (İİK) provides a special, faster type of proceedings. In these proceedings, the payment order sent to the debtor gives ten days to pay and five days to object to the debt or the signature. The objection is made not to the enforcement office but directly to the enforcement court (icra mahkemesi), and it does not automatically stop the proceedings; only the court can order the proceedings to be stayed. The first question to examine is whether the document contains the mandatory elements required by law, in other words whether it really qualifies as a negotiable instrument; if one of these elements is missing, the special procedure cannot be used. For details, see the cheque and promissory note claims page.

Objecting to the Payment Order: The Debtor’s First Step

In enforcement without a judgment started through general attachment proceedings (genel haciz yolu), the debtor can object to the enforcement office within seven days of service of the payment order. An objection made in time stops the proceedings; to continue, the creditor has to apply to the court. Giving reasons in the objection is not mandatory. However, if the signature on the document on which the proceedings are based does not belong to the debtor, this must be stated separately and explicitly in the objection; otherwise the document is deemed accepted for the purposes of the enforcement proceedings. A debtor who objects to only part of the debt must clearly state the amount objected to. An objection to the jurisdiction of the enforcement office is also made within the same time limit.

If the time limit for objection is missed, the proceedings become final and the attachment stage can begin. From that point on, the debtor can only claim not to owe the debt through longer and more costly routes, such as a negative declaratory action.

Action to Annul the Objection

A creditor who wants to continue proceedings halted by the debtor’s objection can file an action to annul the objection (itirazın iptali davası) in the ordinary courts within one year of being served with the objection. In this lawsuit, the existence of the claim can be argued with all kinds of evidence; if the lawsuit is upheld, the objection is set aside and the proceedings continue from where they stopped. If the conditions are met, the court may order a debtor who objected without justification to pay compensation for denial of the debt (icra inkâr tazminatı), and a creditor who started proceedings in bad faith to pay compensation for bad faith (kötü niyet tazminatı). For commercial claims for a sum of money and for a significant proportion of consumer disputes, applying to a mediator before filing a lawsuit is mandatory. For details, see the action to annul the objection page.

Removal of the Objection

If the creditor holds a document of a kind listed in the law, for example an acknowledgement of debt whose signature has been admitted or certified by a notary, or a document issued by public authorities within their powers, the creditor can ask the enforcement court to remove the objection (itirazın kaldırılması) instead of going through lengthy proceedings in the ordinary courts. This request must be made within six months of service of the objection. The enforcement court carries out a limited examination based on the document; the process is therefore faster, but the document must meet the conditions set by law. As a rule, the enforcement court’s decisions on this matter do not have the effect of a final judgment (kesin hüküm), so the parties keep the right to file a lawsuit in the ordinary courts. For details, see the removal of the objection page.

Proceedings for a Debt You Do Not Owe: Negative Declaratory Action and Restitution

If unfounded proceedings have been started against you, or you have missed the time limit to object to the payment order, you can file a negative declaratory action (menfi tespit davası) to establish that you do not owe the debt. This lawsuit can be filed before the proceedings or during them. A negative declaratory action filed after the proceedings have started does not automatically stop them; however, in return for security, you can ask the court for an interim injunction (ihtiyati tedbir) preventing the money held at the enforcement office from being paid to the creditor. For details, see the negative declaratory action page.

A person who has had to pay money they did not owe under the threat of enforcement can claim it back by filing an action for restitution (istirdat davası) within one year of the date on which the money was paid in full. If payment is made while a negative declaratory action is pending, the lawsuit continues as an action for restitution. For details, see the action for restitution page.

Attachment, Sale and the Debtor’s Rights

Once the proceedings have become final, the creditor can request the attachment (haciz) of the debtor’s assets. Bank accounts, vehicles, real estate, salaries and wages, and the debtor’s receivables from third parties can be attached; attached assets are put up for sale after a valuation (kıymet takdiri). For the creditor, it is important to investigate the debtor’s assets early; for the debtor, it is important to exercise their rights against the valuation and the sale in time.

Not all of the debtor’s assets can be attached. The law protects, as exempt from attachment (haczedilmezlik), the household goods necessary for the debtor and their family, the tools the debtor needs to continue their profession, and a home suited to the debtor’s circumstances. Only part of a salary or wage, not the whole of it, can be attached. As a rule, retirement pensions cannot be attached, except for the exceptions listed in the law, such as maintenance (alimony) debts. If an asset that cannot be attached has been attached, this is raised by way of a complaint to the enforcement court.

Complaint to the Enforcement Court

A complaint (şikâyet) can be made to the enforcement court against actions of the enforcement office that are unlawful or inappropriate to the case. As a rule, the complaint is made within seven days of the date on which the action became known; however, no time limit applies where a right is not given effect without good reason or the matter is left to drag on. An objection to the valuation is also made to the enforcement court within seven days of service of the valuation report. Improper service, exemption from attachment, valuation, an incorrectly calculated file debt and unlawful sale procedures are the most frequent subjects of complaints. The complaint route is not only for the debtor; a creditor whose requests have been wrongly rejected or whose file is not being processed can also use it.

Enforcement Proceedings in Mersin

In central Mersin, enforcement proceedings are conducted through the enforcement offices; complaints against the actions of the enforcement offices, requests to remove objections and objections in proceedings based on negotiable instruments are examined by the enforcement courts in Mersin. There are also enforcement offices in districts such as Tarsus, Erdemli, Silifke, Mut and Anamur; these offices may become involved for debtors resident in the district and for assets located there. Proceedings can be started electronically through UYAP, the National Judiciary Informatics System; the request for enforcement, the issuing of the payment order, attachment requests and the monitoring of the file are largely handled electronically, and bank account and vehicle attachments can also be made through this system.

If the debtor or the real estate to be attached is in another city, the proceedings continue from the same file, and the attachment or sale is carried out by sending a letter of request (talimat) to the enforcement office in that place. Because of Mersin’s economy, which is centred on the port, logistics, exports and agriculture, enforcement proceedings in Mersin often arise from commercial claims: chief among them are fees for transport and logistics services, claims arising from foreign trade relationships, current account receivables from the sale of citrus fruit and other agricultural products, construction and material supply claims, and rent claims. For creditors and debtors living in another city or abroad, the process can be conducted from here with a power of attorney (vekâletname). To get an assessment of your file, you can contact me through the contact page.

Frequently Asked Questions