Abolition of objection and cancellation of objection case

People enter into many contractual relationships during everyday life. These contracts provide various rights to the parties and impose debts. In fact, within the framework of the honesty rule, everyone is expected to fulfill his debt with his consent. However, if the person does not fulfill his debt, he who is in the position of creditor can collect his debt from the debtor with the coercive power of the state. The system that allows the creditor to receive is called the Execution Tracking system. 

Execution tracking can be examined in many distinctions. Of these, the most common and therefore important execution method is the illegal execution and unscrupulous execution. Regardless of the nature of the receivable, you may apply for an illicit execution of any kind of receivables. However, the situation is different in the undeclared execution. Because, in accordance with HR m.42, only money and collateral receivables can be subject to unscrupulous execution. Undesignated execution can also be examined in itself in three headings. These are the follow-up through general foreclosure, follow-up to the symposium through special foreclosure and evacuation of the leased immovables through the unlicensed execution.

In order to remove the objection or to mention the case for the cancellation of the objection, the creditor must request follow-up to the enforcement agency in accordance with HR.58 and the borrower must object to the payment order within the period. The creditor does not need a court decision to initiate follow-up at the enforcement agency. In the same way, it indicates that it will take does not need to have any year, it is enough to explain the reason for the debt.
 

Upon requesting the creditor to follow up on his debt, a payment order is sent to the debtor with the executive office. If the debtor objects to the payment order sent to him, the execution follow-up initiated stops. The continuation of the follow-up is only possible if the objection of the debtor to the follow-up is rendered void. The creditor may resort to two different legal means in order to override the objection of the debtor; the first is the way to remove the objection and the other is the way to cancel the objection.

The law has given three different possibilities to the creditor who wants to ensure the continuation of the execution follow-up. The first legal remedy that the creditor who wishes to remove the objection of the debtor may apply is to apply to the executive court for 6 months following notification of the objection to him and to request that the objection be temporarily or definitively removed. This is stated in the Enforcement and Bankruptcy Law m.68 and 68 –. 

The second legal remedy that the creditor may apply for the purpose of continuation of the execution proceedings is to file a cancellation of the objection within 1 year following notification of the objection to him. This path is also stated in Article 67’ of the Law. If the 1-year period in question is passed, the case of receivable within the framework of the general provisions of the court can also be opened. Because the periods related to the legal routes that the creditor may apply for are deserving periods, failure to comply can lead to loss of rights. 

There are 4 ways to continue Executive Follow-up after the appeal: 

1) Final Abolition of the Appeal Trial: Follow-up of the creditor who objected to the request for follow-up, in a year in which the signature is issued, or in a year containing a notarially attested debt settlement, or if it is based on a receipt or document duly issued by official departments or authorities, the creditor may request that the objection be removed within six months of the date of notification to him. If the objection is not removed within this period, it cannot be followed again without notice. 

Accordingly, if the follow-up was made based on one of the documents listed above, the creditor may request the effective removal of the objection from the Executive Court, where the Executive Directorate is bound within 6 months from the date of notification of the objection. The executive court shall examine the claims in a limited manner, and the proof may be made in respect of both parties only by the documents listed above, and no final provision shall be given at the end of the proceedings. If the creditor files a lawsuit for the removal of the objection, the enforcement court decides to remove the debtor's objection with certainty if it justifies the creditor. In case of the acceptance of the request for the abolition of the objection for reasons of principle, if the creditor rejects the request for reasons of principle, the creditor shall be sentenced to compensation not less than twenty percent at the request of the other party. Since the provision to be given at the end of the trial is not a final provision, a lawsuit can be filed again in the general courts on the same subject.

2) Trial for the Temporary Abolition of the Appeal: If the warrant is the deed on which it is based and the signature is rejected by the debtor at the time of the appeal, the creditor may request the temporary removal of the objection within six months of the date of notification to the objection. The responsible and competent court is again the Executive Court where the Executive Directorate is affiliated with where the Executive Directorate is followed. In this case, the executive judge shall receive an explanation from both sides. If there is a signature suitable for comparison, or if there is a comparison and examination to be made with the letter to the debtor and the signature he will make, or the executive court of other evidence and presuppositions, if he believes that the rejected signature belongs to the debtor, he decides to temporarily remove the objection. If the judge deems it necessary, the expert may also make a review if he does not defer the session more than once. If the executive judge decides on the belonging of the signature to the debtor, he condemns the debtor to a fine in the percentage you will receive on the follow-up subject based on the said year. If the debtor lays down debt, deferred or lodged, the execution of that fine is deferred until the end of the lawsuit, and the debtor wins the case, that penalty is lifted. In the event of acceptance of the request for temporary abolition of the objection, the debtor, if he refuses this request, is sentenced to compensation at the request of the other party, not less than twenty percent. If the debtor lays down debt, sets off a deferred or secluded lawsuit, or if the creditor sues in a general court, the collection of the indemnified compensation is threatened until the end of the lawsuit, and for the party resulting in the favor of the lawsuit, the previously imposed reparations are lifted.

The creditor cannot request that the execution proceedings, which have been objected to, be continued on the basis of the decision to temporarily remove the objection issued by the enforcement court. Even if a debt relief lawsuit is filed by the debtor within a seven-day period, the execution proceedings will continue until the debt relief case is concluded. The creditor may request only temporary foreclosure based on the decision to temporarily remove the objection. Therefore, the removal of the objection here is called the temporary removal of the objection. Within seven days of the decision to temporarily remove the objection from the tamphim or notification of the debt, the debtor may file a lawsuit against the debt at the place of follow-up or the settlement court of the creditor. In order for this case to be heard, the debtor to store 15 percent of the amount of money you will receive from cash in the court until the first day of hearing or to deposit the same value of stock or bond or bank guarantee letter that will be accepted by the court it is essential that he. Otherwise, the case will be rejected. If the debtor does not sue within the written time above or the refusal to take the case, the decision to remove the objection and, if any, the temporary lien is finalized. 
 

3) Cancellation of the Appeal Trial: The creditor who is objected to the request for follow-up may file a lawsuit against the objection by contacting the court within one year of the date of notification of the objection, proving the existence of the receipt in the general provisions office. The responsible and competent court shall also be determined in accordance with the general provisions. If the injustice of the objection of the debtor is decided in this case; if it is deemed unjust and ill-intentioned in its pursuit, the creditor; at the request of the other party, according to the situation of the two parties, the weight of the case and the ruling, the, red or is convicted with an appropriate compensation, not less than twenty percent of the amount imposed.  The creditor who has passed the period of opening the case for the cancellation of a one-year objection has the right to open a claim in the general provisions office.

4) Claim Case: According to the M.67’ of the Execution Bankruptcy Law, the creditor has missed the time necessary to open the Cancellation of the Appeal, but in the court, which is authorized and responsible within the framework of the general provisions, he can get it by proving that he is a creditor in his time. 

As examined in the details above, there are many options that can be applied according to the situation of the parties to object to the payment order. Considering that the judicial process is subject to strict procedural rules, it should be remembered that a mistake during the exercise of the right of defense can lead to irreparable harm.