Debtor Rights and the Objection Process in Enforcement Proceedings

This article is an English translation of the Turkish original published by the office.

Enforcement proceedings are one of the areas where the law is applied most in daily life. Thousands of new proceedings are started every day, and the number of enforcement files pending across Türkiye has exceeded forty million. A creditor who cannot collect on their own applies to the enforcement offices to use public power. In this process the creditor has many rights, but so does the debtor. In this article we discuss the debtor’s rights.

Objecting to the payment order in proceedings without a judgment

Enforcement proceedings are generally of two kinds: without a judgment and with a judgment. Proceedings without a judgment are divided into general attachment proceedings, special proceedings for negotiable instruments, and proceedings for eviction from leased property. In proceedings without a judgment, the creditor’s claim is not based on a court decision. General attachment proceedings are the most common route: the creditor asks the enforcement office to issue a payment order, which is served on the debtor. The debtor may object within 7 days; if there is no objection, the debt becomes final. A debtor who claims not to owe the debt must object to the payment order. This stage is critical for protecting the debtor’s rights: without an objection, the proceedings become final and attachment may follow. If the debtor objects, the proceedings stop because they are not based on a court decision, and the creditor must then file an action to annul the objection in order to continue. Objecting at the first stage is therefore very important, as it stops the proceedings directly.

The right to file a negative declaratory action

A debtor may file an action to establish that the debt underlying existing or possible enforcement proceedings does not exist — a negative declaratory action. The debtor seeks to prove that they owe nothing to the creditor. The action may be filed before or after proceedings begin, but must be filed before the debt is paid. If no interim injunction is obtained, the proceedings continue and payment is made to the creditor during the case, the court continues the case as a recovery action without the need for any request.

The right to file a recovery action

If the debtor does not object, or the objection is removed by the court, the proceedings become final. If the debtor has not filed a negative declaratory action with an injunction in the meantime, they will have to pay. A debtor who pays under threat of enforcement without having filed a negative declaratory action may sue for the return of the money — a recovery action (istirdat). Its conditions are that money not owed was paid, that it was paid during enforcement proceedings under threat of enforcement, and that the action is filed within one year. This is a strict time limit that starts when the money not owed has been paid in full to the enforcement office; whether it has been paid on to the creditor does not matter (Enforcement and Bankruptcy Law, Art. 72/7).

Objections in proceedings based on negotiable instruments

Sometimes the claim is based on a negotiable instrument. If the enforcement officer finds that the document is a negotiable instrument and that it is due, a payment order is sent immediately with a copy of the instrument. The debtor may object to the enforcement court by petition within 5 days of service. The objection may concern the debt or the signature, and it must be in writing; oral objections are invalid.

In these proceedings, objections to the debt and signature do not stop enforcement steps other than sale (Arts. 169, 170/1). However, if the enforcement court, in its preliminary examination before the hearing, considers the objection serious in light of the petition and documents, it may temporarily stop the proceedings until it decides on the merits (Arts. 169a/2, 170/2) — essentially an interim measure.

A debtor who claims that the signature on the instrument is not theirs must state this separately and expressly to the enforcement court within 5 days; otherwise the signature is deemed to be the debtor’s. If the court finds that the denied signature is not the debtor’s, it accepts the objection and the proceedings stop; if the creditor acted in bad faith or with gross negligence, the creditor is ordered to pay compensation of not less than 20% of the claim and a fine of 10% of the claim. Conversely, if the denied signature is found to be the debtor’s and the proceedings had been stopped, the debtor is ordered to pay denial compensation of not less than 20% and a fine of 10% of the claim, and the objection is rejected.

Stay of enforcement in proceedings based on a judgment

In proceedings based on a court judgment, the existence of the claim is established by the judgment, so an execution order rather than a payment order is sent, and it is not possible to object to it as one would to a payment order. However, where certain grounds exist, the debtor may prevent the proceedings from continuing through the procedure the law calls stay of enforcement (icranın geri bırakılması), based on grounds arising before or after service of the execution order.

If the debtor claims that, after the judgment but before service of the execution order, the debt was extinguished, became time-barred or was deferred, the debtor must ask the enforcement court for a stay within 7 days of service. If the debt was extinguished, became time-barred or was deferred by the creditor after the proceedings began, the debtor may ask for a stay at any time, without a time limit.

Enforcement procedures involve many technical details and require care; advice from an experienced lawyer helps avoid any loss of rights.

Türker Law Office provides legal representation and advice on the debtor’s remedies against payment and execution orders, objections to the debt and signature, negative declaratory and recovery actions, objections in proceedings based on negotiable instruments, stay of enforcement and the debtor’s other rights in enforcement proceedings.