Before proceeding with enforcement proceedings, it is not mandatory for the creditor’s representative to submit a freelance invoice for the payment of the debt subject to the judgment, in addition to the written application to the administration. If payment is not made within 30 days from the date of the written application, enforcement proceedings may be initiated.
12th Civil Chamber 2018/6351 E., 2019/4901 K.
“Case Law Text”
COURT: Enforcement Court
Upon the creditor’s request for an appeal review of the court decision dated and numbered above within the specified period, the relevant file was sent from the local court to the chamber. After hearing the report prepared by the Review Judge … for the case file and reading and examining all the documents in the file, the matter was discussed and considered:
In his application to the enforcement court, the complainant debtor’s representative stated that, pursuant to Article 28/2 of Law No. 2577, the creditor’s representative applied to their Ministry with a petition dated 17/02/2016, requesting payment of their receivables. However, since the documents required for payment were not submitted with the petition and the figures in the petition were not consistent with the administrative court’s decision, the second petition, with the deficiencies remedied, and the missing documents were submitted to the Ministry with a petition dated 21/03/2016. Since payment should not have been made within one month, in accordance with Article 28 of the Administrative Procedure Code , the creditor’s representative initiated enforcement proceedings on March 21, 2016, without complying with these deadlines, and therefore requested that the enforcement proceedings be canceled. The court determined that the creditor’s representative’s initial application was dated February 17, 2016 (the date of receipt by the administration), but the missing documents were submitted to the institution by the creditor’s representative on March 21, 2016. It was observed that the enforcement was canceled because the creditor’s representative initiated the proceedings on March 21, 2016, without waiting for the 30-day legal period required by Article 28/2 of the Administrative Procedure Law.
Article 28/2 of the Administrative Procedure Law No. 2577, amended by Article 58 of Law No. 6352, states: “… In cases requiring the payment of a specific amount of money, the amount awarded and the attorney’s fees and litigation costs awarded in all types of cases shall be deposited into the bank account number notified in writing by the plaintiff or his/her attorney to the defendant administration, within the framework of the procedures and principles specified in the first paragraph, as of the date of this notification. If payment is not made within the periods specified in the first paragraph, enforcement and execution shall be carried out in accordance with the general provisions…”
According to the aforementioned article of the Law, it is sufficient to apply to the Administration in writing, and the fact that this application has been made is not a matter of dispute between the parties. The dispute centers on whether it is mandatory for the creditor’s attorney to present a freelance invoice for the payment of the claim subject to the judgment, in addition to the written application, before proceeding with enforcement. In this regard, since there is no specific provision in Article 28 of Law No. 2577, there is no need to wait for the process of presenting the aforementioned receipt for the judgment to be enforced.
In this case, the debtor’s first application date to the administration was 02/17/2016, and since the administration’s 30-day legal payment period had passed between this date and the enforcement date of 03/21/2016, the court should have decided to reject the complaint, and the ruling to cancel the enforcement is incorrect.
CONCLUSION: The creditor’s appeal is accepted, and the court’s decision is overturned for the reasons stated above, in accordance with Articles 366 and 428 of the Code of Civil Procedure. and Article 428 of the Code of Civil Procedure, the advance fee to be refunded upon request, and the right to appeal the decision within 10 days of its notification to be open, was unanimously decided on 03/20/2019.