I. What is a Enforcement Request?
An enforcement request is an action taken by the party aiming to have something fulfilled through the enforcement office. The subject matter of the enforcement request can include the payment of money, providing collateral, performing an action, refraining from doing something, or delivering something.
According to the systematics of the Execution and Bankruptcy Law, types of enforcement can be categorized as follows: i) enforcement through execution ii) enforcement through bankruptcy iii) enforcement through the conversion of a pledge into cash. Enforcement through execution and enforcement through the conversion of a pledge into cash can also be further classified as enforcement with or without a court order.
The enforcement request is submitted to the enforcement office, which consists of an enforcement officer appointed by the Ministry of Justice, a sufficient number of assistant enforcement officers, an enforcement clerk, and ushers and clerks assigned by the judicial first instance court justice commissions. Enforcement offices are under supervision.
The enforcement request is the same for every type of enforcement. The enforcement officer issues a payment order, eviction order, or enforcement order in accordance with the information provided by the creditor in the enforcement request. If the mandatory elements are not included in the enforcement request, the enforcement officer cannot issue an order.
A sample enforcement request is as follows. The creditor filling out the relevant sections is required to have technical expertise. If the mandatory elements for the enforcement request are not present, the enforcement office should reject the enforcement request.
Sample Enforcement Request:
II. Elements Required in the Enforcement Request
1. General Seizure through Enforcement Request
The enforcement request can be made in writing, verbally, or through the UYAP system. The following elements must be specified in the request:
- Name, surname of the creditor, and, if any, the legal representative and attorney; name of the bank and account details for payment on behalf of the creditor or attorney; if applicable, Turkish Republic identity number or tax identification number; fame and place of residence; if the creditor resides in a foreign country, the declared place of residence in Turkey.
- Name, surname of the debtor, and, if any, the legal representative; if known by the creditor, the Turkish Republic identity number or tax identification number; fame and place of residence.
- In cases of claims against an estate, the names, surnames, and, if known, Turkish Republic identity numbers or tax identification numbers and places of residence of the heirs to whom the notification will be made.
- The amount of the claim or requested collateral in Turkish currency, the amount of interest in interest-bearing claims, and the date on which the interest began to accrue; if the claim or collateral is in foreign currency, the date on which the claim was requested and the interest, based on the exchange rate of that date.
- The promissory note, or if not available, the reason for the debt.
- The chosen enforcement method.
- Signature of the creditor or attorney.
2. Seizure through Enforcement Request Specific to Bills of Exchange
An authenticated copy of the bill of exchange and the number of debtors must be attached to the enforcement request. (Execution and Bankruptcy Law Article 167/2)
The type of the bill of exchange and distinctive information about it (serial number, date, amount) must be explicitly stated in the enforcement request.
The enforcement method specific to bills of exchange chosen and whether seizure or bankruptcy procedures are selected must be clearly indicated in the enforcement request.
In cases where the Law on Turkish Commercial Code requires the protest to be drawn up, the enforcement request for bills of exchange must also include a notice regarding the protest.
For Eviction through Non-Judicial Execution regarding Leased Real Estate:
In the Execution and Bankruptcy Law, there are two types of enforcement options for leased real estate: “Enforcement for Ordinary Rent and Revenue Leases” and “Enforcement for Termination of Written Lease Agreements.”
In eviction requests related to leased real estate, the type and address of the property should be specified. One of the most important points is that the enforcement request must include the “eviction request.”
3. Elements Required in the Enforcement Request for Execution with Judgment
Information about the judgment subject to execution must be included in the enforcement request for execution with judgment. A copy of the judgment will also be submitted to the enforcement office along with the enforcement request.
In executions through the conversion of a mortgage into cash, the mortgage deed containing an unconditional acknowledgment of debt must be submitted to the enforcement office with the enforcement request.
If the information in the enforcement request does not match the information in the judgment, the enforcement office should not issue an execution order. Otherwise, the execution order will be canceled.
4. Additional Elements in Execution without Judgment through the Conversion of a Pledge into Cash
In addition to the general seizure through the enfrcement rquest, information about the pledged property and, if applicable, the person entitled to the subsequent right of pledge must be specified in the execution without judgment through the conversion of a pledge into cash.
III. Competent Enforcement Office
1. Competent Enforcement Office in Execution without Judgment
The rule of competence in non-judicial execution is determined according to the reference in Article 50 of the Execution and Bankruptcy Law to the Law on Civil Procedure. In non-judicial execution:
– The enforcement office at the debtor’s place of residence is competent. If there are multiple debtors, the enforcement office at the place of residence of any debtor or joint debtors is competent.
In debts arising from contracts, the place of performance of the contract or the place where the contract was made is also competent for the enforcement office. If the place of performance is not determined, the place of residence of the creditor is competent for money debts.
In executions against an estate, the enforcement office at the last place of residence of the deceased is competent.
ln cases involving a branch, the enforcement office where that branch is located is competent.
In debts arising from tort, the enforcement office is competent at the place where the tort occurred, where the damage occurred, and where the injured party resides.
For bills of exchange, the place of payment and/or issuance is also competent for the enforcement office.
2. Competent Enforcement Office in Execution with Judgment
According to Article 34 of the Execution and Bankruptcy Law, each enforcement office is competent for the execution of judgments. Additionally, if the creditor changes their place of residence, they can also request the transfer of the execution to the enforcement office at the new place of residence.
IV. Fees and Expenses to be Paid in the Enforcement Request
Along with the submission of the enforcement request to the enforcement file, certain fees and expenses must be paid. Otherwise, no payment, eviction, or execution order will be issued. All expenses incurred by the creditor will be collected from the debtor.
- The application fee is a fixed amount that the creditor must pay when starting an execution. This fee is deposited into the treasury account.
- The prepayment fee is a fee paid at the rate of one in a thousand of the value of the subject of the enforcement when starting an execution. It is a fixed fee in execution with judgments.
- The expense advance must be paid by the creditor to the enforcement office after the enforcement order is issued and before serving it to the debtor or debtors. The expense advance is required for the creditor’s sufficient fee for the notification. It is necessary to deposit an expense advance for this.
V. In Conclusion
Enforcement law is a formal field of law that begins with the enforcement request. Based on the conclusion of the enforcement, all actions and requests must comply with the law. The enforcement request is so crucial that any errors in its preparation may result in loss of rights.
Failure to correctly fill out the enforcemnt requst or any deficiencies may lead to a complaint about the enforcement officer’s actions and cancellation of the execution. For detailed information on this matter, I recommend reading our article “Complaint about the Actions of the Enforcement Officer.”
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