There are two main frameworks to start debt collection proceedings in Turkey: enforcement proceedings without a court judgment (ilamsız icra takibi) and enforcement proceedings with a court judgment (ilamlı icra takibi). This article examines Turkey's debt collection system and answers the question on how to collect a debt owed to you in Turkey.
A. Enforcement Proceedings without a Court Judgment
There are three methods of enforcement proceedings:
- General seizure enforcement proceedings (genel haciz yoluya takip),
- Enforcement in particular to bonds (kambiyo senedine özgü takip yolu) and
- Eviction of rented immovable properties enforcement (kiralanan taşınmazların ilamsız icra yolu ile tahliyesi)
For the purposes of this article, we will be focusing more on the general enforcement proceedings in detail.
The creditor submits a "debt collection request" (takip talebi) to the relevant debt execution office (residence location of the debtor). Upon 7 days' written notice for payment of debt, the debtor may object to the payment order by:
Objecting the signature (imzaya itiraz): if the debt is established by a deed and the debtor claims that the signature on the deed is does not belong to him (in other words, forged/fraudulent), he may submit an objection to the Debt Execution Office by contesting the signature on that deed.
Objecting the debt (borca itiraz): if the debtor claims he does not owe a part of the relevant debt or the debt itself entirely or he claims that the creditor does not have the authority to request debt collection against him, he may submit an objection to the Debt Execution Office and contest the debt.
Objecting the authority (yetkiye itiraz): if the debtor believes that the debt execution office, which initiated the debt collection process, does not have the authority to execute the debt enforcement then the debtor may object to that debt enforcement office for not having the authority to do so.
In the event of the debtor objecting to the payment order (ödeme emri), the execution proceedings will stop. Therefore, in order to enforce the continuity of the execution proceedings and to nullify the objection decision, the creditor may file either: an action for the revocation of the objection (itirazın iptali davası) or, an action for the abolition of the objection (itirazın kaldırılması davası).
Action for the revocation of the objection is a type of lawsuit which can be applied for at the enforcement court by the creditor within 1 year after the debtor's objection to the debt collection. The legal characteristic (nature) of this type of case is enforcing action for performance.
If the creditor wins this case and the revocation of the objection approved, the enforcement of the debt collection becomes final and the creditor may continue the debt enforcement proceedings as if the debtor never objected to the debt collection in the first place. In this case, the debtor will receive a penalty to pay compensation for repudiation (icra inkar tazminatı) which will be minimum 20% of the total debt amount and the court costs and expenses the creditor has spent (including the attorney fees).
If the creditor loses this case and the object is rejected, the debt enforcement proceedings are revoked and the creditor will receive a penalty to pay compensation for bad faith no less than 20% of the total due debt (the debtor must have requested the compensation for bad faith for the compensation to be awarded by the court).
- Action for the abolition of the objection a creditor can apply for the abolition of the objection to the debt enforcement by relying on the documents provided under Article 68 of the Bankruptcy and Enforcement Law. This means that you cannot apply for an action for abolition of the objection UNLESS the documents you are relying on are of those provided under Article 68, you can only apply for an action for the revocation of the objection.
- Action for the abolition of the objection may be applied for at the enforcement court by the creditor within 6 months after the debtor's objection to the debt collection. Once the 6 months is over after the date of the debtor's objection, the creditor no longer holds the right to apply for this type of case. Furthermore, the judge may sua sponte decide to reject the case due to the time lapse. In other words, the judge may decide to reject the creditor's action for the abolition of the objection on its own motion, without formal prompting from another party.
The action for the abolition of the objection divides into two types: absolute abolition of the objection and the temporary abolition of the objection. If the debtor's objection to the debt collection is on the grounds of objection to the debt and authority, then the creditor may apply to the absolute abolition of the objection, whereas if it is on the grounds of objection to the signature then the creditor may apply to the temporary abolition of the objection.
B. Enforcement Proceedings with a Court Judgment
This is the type of claim based on an enforceable court judgment. In this case, any objection the debtor may claim within 7 days after the receipt of summons will be disregarded by the court in a summary proceeding.
In contrast to the enforcement proceedings without a court judgment, where the debt enforcement order is referred to as the "payment order" which is sent to the debtor, in enforcement proceedings with a court judgment, the debt enforcement order is referred to as the "debt collection order".
Just as every other type of debt enforcement process under Turkish law, enforcement proceedings with a court judgment is issued by the submission of a "request to enforcement proceedings". This request document shall contain: the names-surnames and addresses of the debtor and the creditor and the debt value, including the interest rates.
Pre-Condition to Litigation for Commercial Disputes: Mediation
With the recent amendments to the Law no. 7155, a mandatory mediation process before initiating litigation for commercial disputes entered into force, as of 1 January 2019. This new law the scope of mediation as an alternative dispute resolution tool is extended to capture commercial disputes and not only disputes related to employment matters.
Prepared by: Ali Güden, Doğa Girinti