Complaint about executive officer treatment

The task of implementing the Execution and Bankruptcy Law is given to enforcement offices. Article 16 of the EBL has been regulated in terms of the control of this authority. With the regulation, it is possible to audit the actions of bailiffs that do not comply with the law and to file a complaint in cases where they do not comply with the law.

Complaint can be briefly defined as a legal remedy that enables the cancellation or correction of unlawful acts of enforcement and bankruptcy offices. This legal remedy is specific to enforcement-bankruptcy law and is different from other legal remedies.

SUBJECT OF THE COMPLAINT

The transactions carried out by the enforcement and bankruptcy offices constitute the subject of the complaint. Complaints can only be filed against the actions of enforcement and bankruptcy offices. Transactions such as seizing or selling a property of the debtor and sending a notification to the debtor are transactions carried out by enforcement offices, and the attitude of the enforcement and bankruptcy offices in response to these requests may be subject to complaints.

EXECUTIVE OFFICER TREATMENT REASONS FOR COMPLAINT

Complaint in Article 16 of the EBL;

" Except for the matters that the law leaves to the court to resolve, a complaint can be made to the enforcement court about the transactions carried out by the enforcement and bankruptcy offices because they are contrary to the law or not suitable for the case. The complaint is made within seven days from the date of learning of these transactions. A complaint can be made at any time because a right is not fulfilled or is delayed without any reason." Arranged as follows.

It is understood from the text of the article that the reasons for the complaint are arranged under 4 separate headings. These reasons are;

1- Illegality of the Transaction:Failure to implement or incorrect application of a provision of law constitutes unlawfulness. An example of an unlawful transaction is the enforcement officer's seizure of property that does not belong to the debtor. Illegality is a common cause of complaint.

2- The Transaction Is Not Suitable for the Event:The law grants discretionary power to the executive director in some cases. Some of these powers are clearly written in the law. In some cases, the discretionary power of the executive director is not expressly written in the law but can be derived from the interpretation of the relevant articles. While exercising his discretion, the executive director must take action according to the concrete event. In some cases, the use of this authority may have negative consequences beyond the purpose of the law. In such cases, a complaint can be made on the grounds that the transaction is not appropriate for the incident. If the enforcement officer seizes a property that cannot be seized, it will be concluded that the transaction does not comply with the incident.

3-Failure to Fulfill a Right:EBL 16/2. Article "A complaint can be made at any time if a right is not fulfilled or is delayed without reason." It is organized as follows. If the executive director refuses to do a job that is within his duty, the right will not be fulfilled. If the enforcement director rejects a request duly made to him, there will be a situation where the right is not fulfilled and a complaint may be filed. For example, if the bailiff does not complete the sale, a complaint may be filed. The point to be considered here is that the bailiff has never carried out the transaction. If the transaction is carried out incorrectly by the bailiff, other grounds for complaint will come to the fore.

4-A Right Is Delayed Without Reason:If the executive director does not have a justifiable reason, he must carry out an action that he has to do within the period prescribed by law. If the enforcement director does not take an action that would be against the law without a justified reason, the right will be left in abeyance. Article 60 of the EBL states that "The payment order is finally sent to the debtor for notification within 3 days following the follow-up request.". If the enforcement director does not notify the follow-up request within 3 days, a complaint will be created and a complaint may be taken for not taking action.

THE PARTIES IN THE COMPLAINT ABOUT THE TREATMENT OF THE EXECUTIVE OFFICER

COMLAINANT:

There is no regulation in the Execution and Bankruptcy Law regarding those who have the right to complain. However, this does not mean that everyone has the right to complain. The follow-up creditor, debtor and third parties have the right to complain, provided that there is a legal benefit. In terms of exercising the right to complain, the person who will exercise this right must have a legal interest in canceling or changing a transaction. Third parties who claim compensation have the right to complain. The Enforcement Office does not have the right to complain against the person who committed the action subject to complaint.

COMPLAINED ABOUT:

Since the transaction subject to complaint is carried out by the enforcement officer, the enforcement office will be located in the location of the complaint. EIC. 18/3. The article regulates this issue as follows: "In cases where there is no provision to the contrary, the enforcement court evaluates whether the enforcement office that carried out the action subject to complaint needs to make a statement and hold a hearing; if it deems it appropriate to hold a hearing, it calls the relevant parties to the hearing as soon as possible and makes the necessary decision even if they do not come."

In addition, the party in favor of the transaction will be on the other side of the complaint.

CAN THE EXECUTIVE MANAGER REVERSE HIS DECISION?

The executive director may revoke his decision within the complaint period. Apart from this, the general rule is that the executive director cannot change his action.

"The case is about a complaint about the enforcement officer's treatment. In the incident, after it was decided to accept the creditor's request for the seizure of the retirement bonus, the decision dated 07.4.2017, stating that the creditor did not have a request for the seizure of the debtor's retirement bonus, made the decision subject to the complaint, which is against the principle that the enforcement directorate cannot revoke its own decision on its own." Y12.HD 2019/5556 K.

However, if the enforcement office realizes that its action is against the law, it may change its action within the complaint period. In addition, in a decision given in 2016 by the 12th Civil Chamber of the Supreme Court of Appeals, it was stated that "Although the executive director cannot revoke his own decision, he later realizes that the decision he made before is not in accordance with the scope of the file and the provision of the law, and there is no regulation preventing him from making the decision that is in accordance with the law instead."

The 12th Civil Chamber of the Supreme Court ruled in its decision dated 07.02.2023 and numbered 2023/650 K. that the executive director can reverse his erroneous decision. Since this decision is current, it should be said that it is now possible to reverse the decision. However, lack of unity in practice eliminates legal certainty. In our opinion, the executive director should not be able to reverse his decision after the complaint period has passed, and unity of implementation should be ensured in this direction.

COMPLAINING PERIOD FOR EXECUTIVE OFFICER TREATMENT

As a rule, the complaint period is 7 days. The complainant must exercise his right to complain within 7 days from the day he learned about the transaction subject to complaint. Some transactions are notified to the relevant person in accordance with the EBL. If a complaint is to be filed regarding the notified transaction, the complaint period will start from the notification. If the action subject to complaint has not been notified, the 7-day period will start from the date of learning. The complainant does not have to prove the date on which he learned about the unnotified transaction. In such cases, the date reported by him/her is taken as basis. The other party can prove that the learning date was earlier.

The 7-day period is a disqualifying period. The enforcement court must automatically examine whether the complaint has been filed within due time. The investigation here will be carried out to the extent that can be understood from the enforcement file. Apart from this, the judge cannot automatically investigate whether the transaction subject to complaint was previously known. However, this investigation is carried out in case of objection.

We stated that the complaint period is, as a rule, 7 days. However, there are exceptions to this rule. These exceptions;

1- If a right is not fulfilled or is delayed without reason, the complaint is not subject to time. The complainant can file a complaint at any time.

2-Complaints can always be made against transactions that are against public order. If the enforcement office continues to pursue enforcement proceedings despite an objection being made within the prescribed period, then the debtor is not limited to 7 days in terms of complaint period. "The case is about a complaint about the treatment of the enforcement officer. In order to send an enforcement order to the mortgaged real estate owners, the mortgage contract table must contain an unconditional acknowledgment of money debt and the creditor must send an account floor notice to the addresses of the debtors written in the loan agreement or specified in the mortgage contract table, through a notary public. This issue is subject to an indefinite complaint and should be taken into consideration ex officio. The court will determine the merits of the complaint by examining it. "The decision must be made according to the result."

COMPLAINT PERIOD FOR FORECLOSURE SPECIFIC TO CURRENCY BILLS

Complaint periods for foreclosure specific to bills of exchange vary. In order to determine the duration of the complaint, the reason for the complaint is first examined. If;

If the reason for the complaint is that the bill does not have the nature of foreign exchange, the complaint period is 5 days.

The complaint period for complaints based on the allegation of irregularity in the payment order notification or the lack of a basis for follow-up is 7 days.

THE COURT IN CHARGE OF COMPLAINT ON EXECUTIVE OFFICER TREATMENT

The complaint is examined and decided by the enforcement court. The competent enforcement court is the enforcement court to which the enforcement office that carried out the action subject to the complaint is affiliated. This authority is absolute. We have stated that the complaint will be made to the enforcement court. A complaint made to the enforcement office instead of the enforcement court will not yield any results. The enforcement office does not have the authority to automatically send the file to the enforcement court.

COMPLAINT TREATMENT OF EXECUTIVE OFFICER TREATMENT PROCEDURE

The examination by the enforcement court is carried out according to the simple trial procedure. EBL 18/3. According to the article, in cases where there is no provision to the contrary, the enforcement court evaluates whether there is a need for the enforcement office that carried out the action subject to complaint to make a statement and a hearing; If it deems it appropriate to hold a hearing, it calls the relevant parties to the hearing as soon as possible and makes the necessary decision even if they do not attend. In cases where there is no hearing, the enforcement court makes its decision within ten days at the latest from the date the case is received. Hearings may be postponed only in cases of necessity and for a period not exceeding thirty days.

The enforcement court is not bound by the reasons stated by the complainant.

The complaint does not automatically stop the execution. However, if the enforcement court deems it necessary, it may suspend the execution upon request or by issuing an injunction on its own.

EXECUTIVE OFFICER TREATMENT COMPLAINT FEES

Application fee and decision and judgment fee are collected from the person applying for a complaint.