Can the Debtor Claim Plea of the Jurisdiction at Action for Annulment of Objection Although He/She Does not Object to Execution Office’s Jurisdiction? 6 December 2019

Execution Office’s jurisdiction at prosecutions to be held respecting money and warranty receivables is regulated at Bankruptcy and Enforcement Law (“Law”) Article 50 as “Code of Civil Procedure’s provisions should be applied mutatis mutandis for money or warranty debt about prosecution. In so far as the execution office where the contract is concluded which forms a basis to prosecution is also authorized.” Therefore, with the reference of Article 50 in proceedings without judgment to be held, general competent court is debtor’s settlement execution office at the time the prosecution was commenced according to Code of Civil Procedure (“CCP”)

As is known courts and execution offices do not keep in mind the jurisdiction rule ex-officio in case of jurisdiction is not final and is not concerning public order. For this reason, the debtor should apply plea of the jurisdiction. The debtor who thinks the execution office where the proceeding is held is unauthorized should notify the execution office about plea of the jurisdiction within the duration like any other pleas. Pursuant to Law Article 50/2 the debtor should submit plea of the jurisdiction with pleas for basis thus it is aimed to avoid time loss via enabling investigating pleas for basis, if available in case of refusal of the plea of the jurisdiction. If the debtor did not enter plea of the jurisdiction while entering plea, then he/she cannot enter a plea against the jurisdiction of Execution Office as so the duration of entering plea is not expired, even if a plea for basis is submitted. Therefore the jurisdiction of Execution Office is final. At the same time, the debtor has the possibility to enter a plea of the jurisdiction solely, without entering a plea for basis. For the validity of plea of the jurisdiction of debtor and to cease execution proceedings, the debtor should also prove the authorized execution office in his/her plea.

First, the creditor who wants to cancel debtor’s plea concerning the basis and jurisdiction had the possibility to file a legal action as “Cancellation of Plea” in Enforcement Court and “Annulment of Objection” in general authorized courts, in case of debtor entered a plea of the jurisdiction against execution office solely the creditor has the right alone to file a legal action called “Cancellation of Plea” to cancel the debtor’s plea of the jurisdiction. If the creditor accepts the plea of the jurisdiction, demands the prosecution file to be sent to Execution Office where the debtor notified plea of the jurisdiction. In this case, execution office which has the prosecution file sends a new order of payment to debtor.

There is not a specific rule of jurisdiction about where to commence Action for Annulment of Objection in Law. In view of courts’ authorization can only be defined by law, if the court where prosecution is being held is not the authorized court pursuant to CCL provisions, then there cannot be an action for annulment of objection at the court where prosecution is being held. The court where the execution office is found will not be authorized even if there is not any plea entered and as a result, the authorization of execution office is final. Hence, this issue remarked by Supreme Court of Appeals Civil Chamber no.17 27.01.2006 dated 2014/6945E., 2916/1011 K. numbered resolution as: “… Defendant debtor entered a plea solely to debt in the file numbered 2006/6935 of Beyoğlu 1. Execution Directorate but did not enter a plea of the jurisdiction. Therefore from the point of this debtor authorization issue is finalized and the debtor accepted the jurisdiction of Beyoğlu Execution Office. Since there is not any specific rule of jurisdiction brought for action for Annulment of Objection authorized court will be defined pursuant to general provisions. In case there is not any plea entered to execution office’s authorization this will not make the court authorized in that location with respect of annulment of objection. Therefore defendant debtor can enter a plea to jurisdiction at the filed case action for annulment of objection…”

Consequently, if the authorized execution office is not certainly known for collection of receivables, before commencing execution proceedings it is definitely required to benefit from a lawyer’s assistance about authorized execution office. Otherwise, debtor’s pleas referring to jurisdiction will extend the process of collection of receivables and there will be more expenditure for the creditor who could not collect his/her receivables.

Türkçe Versiyonu İçin:http://www.kasaroglu.av.tr/tr/borclu-icra-dairesinin-yetkisine-itiraz-etmedigi-hallerde-yetki-itirazini-itirazin-iptali-davasinda-one-surebilir-mi