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Execution and Bankruptcy Law
People may apply by the way of complaint in 7 days for unlawful procedures which are not consistent with the incidents, which are made by the enforcement and bankruptcy offices. If the enforcement and bankruptcy office’s procedure obstructs a right to be used or if it is neglected for no god reason then the complaint may be made at any time (there is no time limit). Complaint is done to the execution court which the execution office is bound to. As long as the court does not make a decision the application may not stop the execution.
A request to issue enforcement proceedings is made to the enforcement bailiff. If the claim is based on a document, then the original document or an attested copy of it must be given along with the request to issue the enforcement proceeding to the enforcement office. The enforcement office which takes the request to issue an enforcement proceeding writes an order of payment and in 3 days sends it to the debtor. The debtor who wants to object must notify the enforcement office of his objection in 7 days after receiving the order of payment. Partial objection to the debt is possible however the debtor must show the exact way and exactly how much of the amount they are objecting to. If the debtor is denying the signature on the document then they must also separately and openly state it as well. If the debtor without any fault was not able to make an objection then until the procedure of realization, they have a chance to make a late objection to the enforcement court in 3 days from the time the obstacle has been removed. If the excuse is accepted then the proceeding is stopped.
A claimant whose issue of enforcement proceeding has been objected may open an annulment suit in one year beginning from the time the objection of debtor was sent to him. In this case the claimant must prove that the claim exists by the general provisions. If the claimant of the objected enforcement proceeding can prove that their claim exists in cases when the debtors agrees that the signature on the document is theirs or when there is a document which shows that there is a debt and this is approved by a notary or if they base their claims on documents which were given by official offices or component authorities as receipts or documents then the claimant may request that the objection is temporarily removed in six months beginning from the time the objection was sent to them.
If the debtor after the enforcement procedure has become definite can prove that they have paid the debt and its ancillaries or that the claimant has given them some time in order to pay with a document acknowledged by a notary or with a document with an acknowledged signature then they may always ask the enforcement court to annul or postpone the enforcement procedure.
The debtor in order to prove that they are not in fact in debt may open a negative declaratory action before or during an enforcement proceeding. If the action was made before the enforcement proceeding was opened and if the debtor give a %15 security the court may decide to stop the enforcement proceeding. However if the action is made after the enforcement proceeding was opened then when the debtor gives a 15% security the court may only decide to put a provisional injunction so that the money given to the enforcement office’s cash desk is not given to the claimant. If because an objection to the enforcement proceeding was not made or because the objection was removed the debtor was forced to pay money which they were not in fact in debt with then this person may open an action for claiming back starting 1 year from the day the payment was made.
Seizure should be requested in 1 year after the payment order has been sent. The enforcement office executes the seizure in 3 days after the request is made. The seizure procedure may be made in the absence of the debtor. Some of the items and rights which may not be subjected to a seizure procedure are these; state properties, bed, clothing which are essential for the debtor’s and their family and books for worship, kitchen items which are impossible to be given because of their functions, two months worth of rations for the debtor’s and his family, the debtor’s house which is proper to the debtor’s economic situation. The bailiff who does the seizure may asses the items worth themselves or if needed they may call in a specialist on the matter. For the seizure of rights and claims which are own by the debtor but are in some other persons or company’s hands a written notice is sent according to article 89/1 of the Enforcement and Bankruptcy Act. If the third person does not object in 7 days after the written notice is sent, then the item or debt is accepted as if they are in this person possession and a second seizure warning notice (named 89/2) is sent to them. If the third person does not object in 7 days after the warning notice is sent to them then the debt accepted as in their possession is asked to be paid or the item to be given to the enforcement office.
If the debtor shows a item which is in their hands as someone else’s property or pledge or if the ownership of the item or pledge right is claimed by a third person then the enforcement office notifies this to both parties and gives them the objection right in 3 days. If an objection is made the file is sent to the enforcement court. In this case the third person must open an action for recovery of property in 7 days after the court has made its decision. Joining a seizure is also possible. If the person does not have anything which may be subject to seizure then the official report is accepted as a certificate of insolvency.
If the subject of seizure is a movable then in 1 year, if it is a property then in 2 years a request to sell them must be made. If the debtor declares to pay the debt in partial instalments before the request of sale is made and pays the first instalment immediately then the enforcement proceedings stop. If one of the payments is not paid on time then the enforcement procedure continues from where it left off.
Movable items are sold by open auction in 1 month after a request of sale is made. At the first auction the items sale price must be at least 60 % of its estimated price and must cover the preferred claims. The second auction is made in 5 days following the first one. The auction price must be at least 40% of the estimated price of the item and must be more than total of all the preferred claims on the claimant’s claim. On some exceptions sale by bargaining is possible.
Properties are sold by open auction in 2 years after a sale request. Before beginning the sale the bailiff makes a list of the obligations on the property found registered in the land registry and bound to an official document and then sends it to the debtor and the people who are seizing the things on the list. This list is called obligations list. After the evaluation of value is made a complaint for the evaluation of value may be made to the enforcement court in 7 days. For properties the sales fee must be paid in advance however the bailiff may give the buyer a maximum of 10 days for payment.
If the sales price is not enough to pay every claimant’s claim the enforcement office makes a list of sequence of payments of the claims. A copy of this list is sent to the related people by the enforcement office. In 7 days the claimants may open an objection to the list of payments suit against the related people in 7days after receiving the notice.
In filing bankruptcy proceedings against debtors the competent authority is the one found in the area of the place the debtor’s business centre is. The parties may not make a competent court contract for bankruptcy cases. If in the time of the payment order the debtor does not make an objection then the claimant may ask the commercial court with a request for the bankruptcy of the debtor. A claimant who takes back their request for the debtor’s bankruptcy may not renew this request until a month passes. In 15 days beginning from the time the request of bankruptcy is declared other claimants may intervene or object to the case and by imposing that a situation for bankruptcy does not exist may ask the court to refuse the request. The decision of bankruptcy is notified to the bankruptcy office.
When stock corporations and cooperatives debts are more than their incomes then without a prior bankruptcy preceding a decision of bankruptcy may be given. However if the persons whose duties are to manage and represent or if one of the claimants present the court with a project showing that the financial situation of the company or corporation may be fixed they may request for the bankruptcy to be postponed. If the court sees the project as serious and conclusive then it may decide to postpone the bankruptcy.
Before or after bankruptcy a person who does the actions shown in the law which are made in order to harm the claimants are accepted as fraudulent and are punished according to the fraudulent bankruptcy provisions in the Criminal Code.
A claimant of a money debt which has not been protected with a pledge and has not become due may make a provisional seizure of a movable or property or right in the possession of the debtor or a third person. For a debt which has become due only if the debtor does not have a certain place of residence or if they are making preparations to escape from their debts then they may request a provisional seizure.
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