Enforcement Proceedings — How They Start, Objecting to a Payment Order and Attachment
A general guide to proceedings with and without a judgment, objecting to a payment order, the attachment and sale periods, and the property and income exempt from attachment.
In Brief
Enforcement proceedings aim at the collection of a claim through the State's compulsory enforcement organs. In ordinary attachment proceedings without a judgment, the debtor may object to the debt or to the signature within seven days of service of the payment order; a timely objection halts the proceedings. In proceedings specific to bills of exchange, for the eviction of leased immovable property, for the realisation of a pledge and in enforcement based on a judgment, the periods and the routes of application differ.
Enforcement based on a judgment requires a court judgment or a document having the force of a judgment; but not every judgment must be final before it can be enforced. As a rule, pursuing an appeal does not stay the enforcement of a judgment. The cases in which the statute requires finality, such as decisions in the law of persons and family law and decisions concerning title to immovable property, are reserved (Code of Civil Procedure arts. 350 and 367).
The current general period for the sale of attached movable and immovable property is one year from the attachment. For the attachment of wages and pensions, different rules apply according to the type of income; the absolute statement “at most one quarter of every salary may be attached” is incorrect.
What Are Enforcement Proceedings?
Enforcement proceedings are the compulsory enforcement process conducted at an enforcement office in order to collect a private law claim by the statutory procedures. Claims for money and security are as a rule pursued by way of proceedings; the conditions for proceedings with and without a judgment and for the special forms of proceedings differ.
The Difference Between Proceedings With and Without a Judgment
| Criterion | Proceedings based on a judgment | Ordinary attachment proceedings without a judgment |
|---|---|---|
| Legal basis | Enforcement and Bankruptcy Law arts. 32 et seq. | Enforcement and Bankruptcy Law arts. 42 et seq. |
| Underlying document | A judgment or a document having the force of a judgment | No document is required in order to commence proceedings |
| Document served | Enforcement order | Payment order |
| The debtor's application | The grounds of complaint or objection exhaustively listed in the statute, before the enforcement court | An objection to the debt and/or the signature, made to the enforcement office within seven days |
| Effect of the application | Not every application automatically stays enforcement | A timely objection halts the proceedings |
| Venue | Proceedings may be brought at any enforcement office in Türkiye (Enforcement and Bankruptcy Law art. 34) | The general and special venue rules apply through the reference in Enforcement and Bankruptcy Law art. 50 |
| Limitation | As a rule ten years for claims based on a judgment; the statutory exceptions are reserved | Subject to the limitation applicable to the underlying claim |
How Are Enforcement Proceedings Started?
- Choosing the form of proceedings: The correct form is chosen according to whether the claim rests on a judgment, a bill of exchange, a tenancy relationship or a pledge.
- The enforcement office with venue: In ordinary attachment proceedings the debtor's place of residence is the basic venue rule; the place of performance of the contract, tort, a branch office, a valid venue agreement and other special rules may alter the result. Enforcement based on a judgment may be commenced at any enforcement office in Türkiye.
- The request for proceedings: The parties' details, the claim and interest, the basis of the claim and the form of proceedings chosen are stated.
- Fees and costs: The necessary fees together with the costs of service and postage are paid.
- The payment or enforcement order: The enforcement office issues the appropriate order and serves it on the debtor.
- Finality and attachment: In ordinary attachment proceedings, if there is no timely objection, or if the objection is lifted or set aside by the statutory route, the proceedings may move to the attachment stage.
Objecting to a Payment Order
In ordinary attachment proceedings without a judgment, the debtor may object to the enforcement office in writing or orally within seven days of service of the payment order. The objection may relate to the whole or part of the debt, to interest, to venue or to the signature. An objection to the signature must be expressly stated. In an objection to venue, the enforcement office considered to have venue must also be identified.
The creditor's principal routes are:
- Action to set aside the objection (Enforcement and Bankruptcy Law art. 67): May be brought in the court of general jurisdiction within one year of service of the objection. Missing the one-year period does not automatically extinguish the claim itself or an action on the underlying claim; but the possibility of continuing the existing proceedings by that route, and the consequences attaching to it, are lost. The claim may be made the subject of ordinary proceedings within its own limitation period.
- Lifting the objection (Enforcement and Bankruptcy Law arts. 68 and 68/a): Where the document conditions listed in the statute are met, this may be sought from the enforcement court within six months of service of the objection.
Attachment
Attachment is the taking of legal control by the enforcement office over property and rights of the debtor sufficient to meet the debt. The creditor must request an attachment within one year of service of the payment order; where there is an objection or an action, the time from those events until the judgment becomes final is not counted (Enforcement and Bankruptcy Law art. 78). It is incorrect to generalise the start of the period as “the date on which the proceedings became final”.
If no attachment is requested within one year, or the request is withdrawn and not renewed within that period, the file is removed from the register. This does not of itself extinguish the debt; the provisions on renewal, limitation and fees also apply.
An attachment may be applied physically at an address, through a register entry, or by sending an attachment notice to a third party. Electronic queries and orders made through UYAP are not a separate form of proceedings but a way of carrying out the act electronically.
Property and Income Exempt from, or Only Partly Subject to, Attachment
| Item | General rule and important exception |
|---|---|
| Public property | Exempt from attachment under the general rule in Enforcement and Bankruptcy Law art. 82; the provisions of special statutes are reserved. |
| Household goods necessary for the debtor and the family living under the same roof | The statutory exceptions as to valuables and as to several items serving the same purpose are taken into account. |
| Equipment essential to an occupation | Where the debtor carries on their art or occupation by physical labour, the essential equipment may be protected; capital-intensive activity and the special exceptions are examined separately. |
| A dwelling appropriate to the debtor's circumstances | As a rule exempt from attachment; if the value of the home exceeds the need for a suitable dwelling, a sale and the leaving of an appropriate sum to the debtor may arise. Statutory exceptions, such as the debt arising from the price of that very asset, are reserved. |
| Employee's wages | No more than one quarter of the monthly wage of an employee subject to art. 35 of Labour Law no. 4857 may be attached; an amount to be assessed by the judge for the persons the employee is bound to support is set aside. The rights of maintenance creditors are reserved. |
| Salaries, wages and income within Enforcement and Bankruptcy Law art. 83 | The amount to be attached is determined after deducting the sum the enforcement director considers necessary for the subsistence of the debtor and their family; the part attached may not be less than one quarter. Where a special statute governs the type of income, that statute applies. |
| Income, pensions and allowances under Law no. 5510 | As a rule exempt from attachment, apart from the Social Security Institution's claims pursued under art. 88 and maintenance debts. Unless the debtor has given valid consent to the attachment, the request is refused. |
Whether a student grant or benefit may be attached is determined by the special statute on which the payment rests; it is incorrect to say that all grants are exempt under a single provision of the Enforcement and Bankruptcy Law.
Technically, the plea of a dwelling appropriate to the debtor's circumstances is raised not as an “objection” to the payment order but by way of complaint against the attachment. As a rule the period for complaint is seven days from the act coming to the complainant's knowledge; the cases allowing a complaint without a time limit and the special provisions are reserved.
The Request for Sale
Under the current text of art. 106 of the Enforcement and Bankruptcy Law, the creditor or the debtor may request the sale of the attached property within one year of the attachment. This period is the same for movable and immovable property. The debtor's claim against a third party is also subject to this rule.
The valuation and the whole of the sale costs must be paid in advance together with the request for sale. For registered motor vehicles, the cost of custody is paid at the same time. If the necessary costs are not paid, the request for sale is deemed not to have been made. Where a sale is not requested in time or the statutory costs are not paid, art. 110 of the Enforcement and Bankruptcy Law on the lapse of the attachment applies.
Timetable — Ordinary Attachment Proceedings Without a Judgment
| Stage | Period and starting point | Consequence |
|---|---|---|
| Objection to the payment order | 7 days from service | A timely objection halts the proceedings |
| Declaration of assets, if the debt is not paid and no objection is made | 7 days, according to the warning in the payment order | If no declaration is given, coercive imprisonment may arise on the creditor's complaint and by decision of the court; imprisonment is not automatic |
| Request for attachment | 1 year from service of the payment order, excluding the periods of suspension in Enforcement and Bankruptcy Law art. 78 | The file may be removed from the register; the debt does not thereby come to an end |
| Request for the sale of movable or immovable property | 1 year from the attachment | If the conditions as to period and costs are not met, the attachment may lapse |
| Action to set aside the objection | 1 year from service of the objection on the creditor | The continuation of the existing proceedings by this special route, and the consequences attaching to it, are lost; the underlying claim does not thereby lapse |
| Lifting the objection | 6 months from service of the objection on the creditor | This special route closes |
Payment by Instalments
The statutory possibility of payment by instalments in art. 111 of the Enforcement and Bankruptcy Law is not “25 per cent up front and the remainder in 12 instalments”. Where sufficient property of the debtor has been attached, the debtor may, before the request for sale, undertake to pay the debt in regular instalments, provided they pay the first instalment immediately and each instalment is at least one quarter of the debt; under the statute the total period of these instalments may not exceed three months. The creditor and the debtor may also agree separately on a different payment plan; the effect of such an agreement on the proceedings is assessed within the framework of arts. 111 and 106.
The Debtor's Principal Rights
- Timely objection to the debt, to interest, to the signature and to venue.
- Complaint to the enforcement court against acts of the enforcement office that are contrary to the statute or to the facts.
- Complaint of exemption from attachment and of a dwelling appropriate to the debtor's circumstances.
- Where the conditions are met, late objection and a negative declaratory or recovery action.
- Payment by instalments under art. 111 of the Enforcement and Bankruptcy Law, or a payment agreement with the creditor.
- Requesting the lifting of an excessive attachment and that the attachment be limited to an amount sufficient to meet the debt.
Conclusion
In enforcement law the form of proceedings, service of documents and the starting point of the periods directly affect the outcome. In ordinary attachment proceedings the period for objection is seven days; the period for requesting an attachment is one year from service of the payment order; and the period for requesting the sale of attached movable or immovable property is one year from the attachment. In the attachment of salaries and pensions, a single one-quarter rule cannot be applied without determining the legal character of the income.
Official sources: Enforcement and Bankruptcy Law no. 2004, Code of Civil Procedure no. 6100, Labour Law no. 4857, Ministry of Justice — Enforcement and Bankruptcy Law art. 106 and the Practice on Sale Costs
This article was prepared by Av. Mehmet Serhat MALGIR.
