TO THE 6TH ENFORCEMENT AND CIVIL COURT OF ANTALYA
DEFENDANT: ……….
ATTORNEYS: Attorney ……….
PLAINTIFF: ……….
ATTORNEY: Attorney ………….
SUBJECT: Submission of our Answer.
EXPLANATIONS:
Pursuant to the attached power of attorney and authorization document, we are the attorneys for …………. (ATTACHMENT—Power of Attorney and Authorization Document)
In summary, the plaintiff states in the complaint:
“Enforcement proceedings were initiated against the plaintiff by the Antalya Bank Debts Enforcement Office under Case No. ……. Case No. ……, that the payment order was served on January 21, and that, pursuant to Article 1, since the addressee was not present at the address, the neighbor was questioned; and that, since the neighbor’s name was not listed on the service record, the service was irregular, and therefore requests that the date of service be determined as ………..”
Pursuant to the Banking Services Agreement signed and executed between the deceased and the client bank, the following were opened and made available to the other party: credit card No. ……….; single account No. ………..; and support loan No. ………
Since the decedent failed to pay the debt arising from the use of the aforementioned credit and did not fulfill his obligations under the agreements, his account was closed, and notices of default and acceleration, as well as a formal notice, were sent.
Although it was intended to initiate enforcement proceedings against the decedent upon the failure to pay the debt within the prescribed period, it was learned that he had passed away on ……..
Subsequently, on ………, we obtained a certificate of inheritance from the Antalya 2nd Civil Court of Peace under Case No. ………, and enforcement proceedings were initiated against the plaintiff …………, the legal heir, through the Antalya ……… Enforcement Office under Case No. ………
The payment order was served on ………; the opposing party objected to the debt via a petition dated ……
First and foremost, this case is contrary to both procedure and substance and must be dismissed. Specifically:
OUR OBJECTIONS REGARDING PROCEDURE:
The payment order was prepared by the enforcement office on ……… and served on ……….
The legal basis for the claim that the service of the payment order was irregular is Article 16 of the Enforcement and Bankruptcy Code (EBC); pursuant to paragraph 1 of the same article, such a complaint must be filed with the enforcement court within 7 days from the date the irregularity in service was discovered.
“Article 16 of the Enforcement and Bankruptcy Code – (Amended: 7/3/1940-3890/1)
Except for matters left to the discretion of the court by law, a complaint may be filed with the enforcement court regarding actions taken by the Enforcement and Bankruptcy Offices on the grounds that they are contrary to the law or inappropriate to the circumstances. The complaint must be filed within seven days from the date such actions are learned of.”
The objection period is seven days from the date of learning of the irregular service. The notice was served on ………. and no objection was filed within the prescribed period; the date of this lawsuit is ……….
“12th Civil Chamber, November 5, 2012, No. 14953/31384
…In an enforcement proceeding without a judgment through general attachment, the debtor is required, pursuant to Article 62/1 of the Enforcement and Bankruptcy Code, to notify the enforcement office of their objection in writing or orally within seven days from the date of service of the payment order. “The objection must be filed with the enforcement office in writing or orally within seven days from the date of service of the payment order.”
“Supreme Court Decision – 12th Civil Chamber, Case No. 2018/243, Decision No. 2018/11605, Date: November 15, 2018
…regarding the complaint of improper service: Given that, pursuant to Article 32 of the Service of Process Law, a complaint must be filed within 7 days of learning of the improper service, even though the debtor stated that he was notified of the service on August 21, 2015, the debtor filed a complaint with the enforcement court on September 4, 2015, after the statutory 7-day period provided for in Article 16(1) of the Enforcement and Bankruptcy Code had expired.
Therefore, while the court should have ruled to dismiss the complaint on the grounds of the expiration of the time limit, it was improper to examine the merits of the case and issue a written judgment.”
Moreover, the date on which the enforcement proceeding was learned can be seen through the e-Government and UYAP Citizen Portal channels. The UYAP registry records the “read” status, and the time periods beginning with “notification” start to run. We request that this be investigated at the discretion of your court.
“Konya Regional Court of Appeal, 7th Civil Chamber, Case No. 2020/90 E, Decision No. 2020/141 K; 12th Civil Chamber, Case No. 2020/4270 E, Decision No. 2020/6852 K.
Upon reviewing the record of the enforcement proceeding on UYAP; when examining the document regarding the real property attachment (registered under the title “Real Property Information Document” dated July 17, 2018) in the document processing register, it appears that the complainant-debtor, Hasan A. I, according to the official records on UYAP, was aware of the enforcement case in question as of February 26, 2019; however, he filed his complaint with the enforcement court on April 24, 2019, after the 7-day deadline had expired. Therefore, our Chamber has concluded that the complaint must be dismissed due to the expiration of the statute of limitations.”
OUR OBJECTIONS ON THE MERITS:
“Article 21 – (Amended: June 6, 1985 – Article 3220/7) If the person to be served or none of the persons who may be served pursuant to the preceding articles is present at the specified address or refuses to accept service, the process server shall deliver the documents to be served to the local village headman or a member of the village council, or to a police officer or official, in exchange for a signature, and shall affix a notice containing the address of the recipient to the door of the building at the specified address; furthermore, in the event the person to be served is not present at the address, the fact of the service shall also be communicated, to the extent possible, to one of the nearest neighbors, or, if available, to the building manager or doorman. The date the notice is affixed to the door shall be deemed the date of service.”
Pursuant to Article 10 of the Code of Civil Procedure (TK), which states, “Service of process shall be made at the last known address of the person to be served,” service was effected at the address known to us, which is also the address registered in the National Population Registration System (MERNIS).
The address indicated is the address of the addressee as recorded in the address registration system; even if the addressee has never resided at that address or has permanently moved away from it, the serving officer shall deliver the documents to be served to the village headman or a member of the village council, or to a police officer or official, in exchange for a signature, and shall affix a notice containing the address of the recipient to the door of the building at the indicated address. The date the notice is affixed to the door shall be deemed the date of service. As is clear from the wording of the provision, while it is necessary to notify one of the nearest neighbors—or, if available, the building manager or doorman—of the situation, since service was made to the village headman, there is no requirement for the neighbors’ names to appear on the certificate of service.
As can be seen in the certificate of service pertaining to the case at hand, the document was served to the village headman, and the village headman’s first and last name and seal are present. For the reasons explained above, service has been effected in accordance with Article 21/1 of the Service of Process Law, and there is no procedural irregularity.
EVIDENCE: Antalya ……….. Enforcement Office, Case No. ………, and all other relevant evidence
LEGAL GROUNDS: The Enforcement and Bankruptcy Code and all other applicable legal regulations
CONCLUSION AND REQUEST: For all the reasons explained above;
We request that the unfounded and baseless lawsuit be dismissed, first on PROCEDURAL GROUNDS and, if not, on MERITS,
We request a decision ordering the plaintiff to bear the attorney’s fees and litigation costs.
Respectfully,
Attorneys,