Certain Significant Amendments To The Enforcement And Bankruptcy Law
CERTAIN SIGNIFICANT AMENDMENTS TO THE ENFORCEMENT AND BANKRUPTCY LAW
The Law numbered 7343 on Amendment to the Enforcement and Bankruptcy Law and Certain Laws (“Law”), published in the Official Gazette dated 30.11.2021, numbered 31675 and entered into force as of the publication date, makes amendments in respect of significant matters particularly such as jurisdiction over decisions for postponement of enforcement, establishment of new directorates of enforcement offices, periods and expenses for seizure requests, terms of sales by consent, conduct of auctions through an electronic sales portal, to whom and how the rent shall be paid for the real estates that are subject to seizure, and child delivery and establishment of personal relations with the child.
This newsletter provides general information on the statutory provisions containing the certain significant amendments referred to above.
Amendments about the grant of jurisdiction to Local Courts in decisions for postponement of enforcement
The jurisdiction over decisions for postponement of enforcement, granted formerly to the Regional Courts of Justice or the Court of Cassation, shall, pursuant to the amendment, be granted to the enforcement court at the location where the enforcement proceedings have been initiated. However, the procedure of rendering decisions for postponement of enforcement separately in terms of the first-degree appellate phase and the appellate phase shall maintain its validity.
In brief, the relevant provisions are as follows:
“ARTICLE 5 – The wording “the Regional Court of Justice or the Court of Cassation”, contained in the first paragraph of Article 36 of the Law numbered 2004, is hereby amended as “the enforcement court at the location where the enforcement proceedings have been initiated”, and the third paragraph of the same Article is hereby amended as follows; and the wording “which shall review the merits after reversal” is hereby added after the wording “shall not be delivered” in the second sentence of the fifth paragraph of the same Article; and the wording “on a final basis” is hereby added after wording “the application” in the first sentence of the sixth paragraph of the same Article; and the following sentence is hereby added after the second sentence of the sixth paragraph.
If the relevant fee is paid by the persons concerned, the enforcement court shall communicate the decision for postponement of enforcement to the court which has established the verdict, or the enforcement office, by the most appropriate means.
In case the remedy “appeal” is available against the Regional Court of Justice’s decision rejecting the application on the merits, the effect of the decision for postponement of enforcement shall survive by the end of the term for applying to the remedy “appeal”.”
Amendments for the establishment of new directorates of enforcement offices
Upon the Law enters into force, the Ministry of Justice may establish one or more than one directorate of enforcement offices in provinces where the workload or the number of enforcement offices is high, in which case the Ministry of Justice shall also determine the jurisdictional framework of those directorates. One chief enforcement director and sufficient number of deputy enforcement directors shall serve at each directorate.
In brief, the relevant provisions are as follows:
“ARTICLE 2 – The following article is hereby added after Article 3 in the Law numbered 2004:
“Directorate of enforcement offices
ARTICLE 3/a – The Ministry of Justice may establish one or more than one directorate of enforcement offices in provinces where the workload or the number of enforcement offices is high, in which case the Ministry of Justice shall also determine the jurisdictional framework of those directorates.
One chief enforcement director and sufficient number of deputy enforcement directors shall serve at each directorate …”’
Amendments regarding the statutory periods for the request and amendments on the payment of expenses
Pursuant to Article 106 bearing the heading “Statutory Periods for the Request, and Payment of Expenses”, the creditor or debtor persons may request for judicial sale of the seized property within one year as of the seizure date. This provision also applies to the debtor’s receivables in possession of third parties, and it is also made mandatory to pay the appraisal and judicial sale expenses in full and in advance, along with the request for judicial sale.
In brief, the relevant provisions are as follows:
“ARTICLE 9 – Article 106, including its heading, in the Law numbered 2004 is hereby amended as follows:
“Statutory periods for the request, and payment of expenses
ARTICLE 106 – The creditor or the debtor may request for judicial sale of the seized property within one year as of the seizure date. The debtor’s receivables in the possession of third parties are also governed by this provision.
In relation to a seized property for which the judicial sale is requested within one-year period, however, whose judicial sale could not take place in result of the auction, the period for the request for judicial sale shall extend for a further period of one year as of the expiration of the period mentioned in the first paragraph, with regard to the creditor who requests for judicial sale.
It is mandatory to pay the appraisal and judicial sale expenses in full and in advance, along with the request for judicial sale…’’
Certain amendments regarding the terms of the authorization to sell by consent
The parties are also granted certain new rights pursuant to the Law. As per the relevant statutory provision, under the name “granting authorization to sell to the debtor”, it is made possible for the debtor to request for granting him the authorization for the sale of his seized property by consent, within seven days as of the service of the appraisal. In cases where the appraisal is not carried out, the debtor may request that the appraisal be carried out.
In brief, the relevant provision is as follows:
“ARTICLE 12 – The following article is hereby added after Article 111 in the Law numbered 2004:
“Granting authorization to sell to the debtor:
ARTICLE 111/a – The debtor may request for granting him the authorization for the sale of his seized property by consent, within seven days as of the service of the appraisal. In cases where the appraisal is not carried out, the debtor may also request that the appraisal be carried out…’’
Provisions regarding auction sales of seized properties through the Electronic Sales Portal
The new statutory provisions bring certain amendments in respect of auctions as well. It is prescribed that the judicial sales of seized properties be carried out by auctions on the electronic sales portal integrated into the National Judicial Network Information System. In these auctions, the period for submission of bids is prescribed to be 7 days, and it is determined that the difference amount between or among the bids shall not be less than one-thousandth of the appraised value of the property put up for sale, and in any case, shall not be less than one hundred Turkish Liras.
New provisions are also introduced in respect of payment of the tender price and delivery of the relevant property. It is stated that, even if rescission of the tender is requested, the successful tenderer is obliged to pay the sale value in cash, within 7 days as of the announcement of the auction report. Furthermore, it is prescribed that the property sold be not delivered and be not granted registration with the public register in the name of the successful tenderer, before the tender becomes final.
In brief, the relevant provisions are as follows:
“ARTICLE 13 – The following article is hereby added after Article 111 in the Law numbered 2004:
“Sale by auction in electronic environment
ARTICLE 111/b – Judicial sales of seized properties shall be carried out by auctions on the electronic sales portal integrated into the National Judicial Network Information System.’’
“ARTICLE 18 – Article 118, including its heading, in the Law numbered 2004 is hereby amended as follows:
“Payment of the tender price and delivery of the property:
ARTICLE 118 – Even if rescission of the tender is requested, the successful tenderer is obliged to pay the sale value in cash, within 7 days as of the announcement of the auction report.
The property sold shall not be delivered and shall not be granted registration with the public register in the name of the successful tenderer, before the tender becomes final.”
Provisions for depositing the rent into the enforcement office, with regard to the real estates that are subject to tender
With the Law which also contains provisions specific to lessees in the real estates that are subject to tender and persons who will purchase the real estate relevant to the tender; the enforcement office shall, upon request of the successful tenderer, order the person residing in the sold real estate under a lease agreement to deposit the rent into the enforcement office, and in other cases, shall order the person using the real estate to deposit into the enforcement office the monthly usage fee determined through the channel of an expert. By this means, the occurrence of disputes regarding the payment of the rents and retroactive loss of rights will be prevented. Furthermore, the request for rescission of the tender, made by the persons other than the creditor who has requested for the judicial sale, the debtor, the limited real right holders and the relevant persons registered with the public register shall be subjected to a proportional fee based on the tender price.
In brief, the relevant provision is as follows:
“ARTICLE 27 –...“ The enforcement office shall, upon request of the successful tenderer, order the person residing in the sold real estate under a lease agreement to deposit the rent into the enforcement office, and in other cases, shall order the person using the real estate to deposit into the enforcement office the monthly usage fee determined through the channel of an expert. If the relevant person does not deposit the rent or the determined fee into the enforcement office despite the notification, Article 356 shall apply to this person by analogy. The amount deposited in this way shall be paid to the right holder depending on the result of the auction…”
Provisions regarding child delivery and establishment of personal relations with the child
Undoubtedly, the Articles regulated under the heading “Child Delivery and Establishment of Personal Relations with the Child” represent one of the most attention-grabbing parts in the Law.
Pursuant to the current amendments, the directorates of judicial support and victim services established by the Ministry of Justice, shall, taking the best interests of the child as basis, fulfill the judgments rendered or the injunctions ordered by family courts for child delivery or establishment of personal relations with the child, and all the processes regarding the fulfilment of the judgments or injunctions for child delivery or establishment of personal relations with the child shall be carried out at the delivery places determined by the directorates. With this provision, the way is also paved for the establishment of child delivery centers for children.
In brief, the relevant provisions are as follows:
“ARTICLE 38 – The following paragraph is hereby added to Article 324 of the Code numbered 4721:
“If the mother or father to whom the custody is granted does not fulfill the requirements of the arrangement on personal relations, the custody may be changed, provided that it is not contrary to the interests of the child. This matter shall be notified to the parties in the judgment regarding the establishment of personal relations.”
‘’ARTICLE 39 – … ARTICLE 41/A – (1) The directorates of judicial support and victim services established by the Ministry of Justice, shall, in accordance with the provisions contained in this Section, and taking the best interests of the child as basis, fulfill the judgments rendered or the injunctions ordered by family courts for child delivery or establishment of personal relations with the child…’’
‘’ARTICLE 42 – The following article is hereby added after Article 41 in the Law numbered 5395:
“Delivery places
ARTICLE 41/D – (1) The processes regarding the fulfilment of the judgments or injunctions for child delivery or establishment of personal relations with the child shall be carried out at the delivery places determined by the directorate…’’
‘’ARTICLE 43 – The following article is hereby added after Article 41 in the Law numbered 5395:
“Complaint and objection
ARTICLE 41/E – (1) Within one week as of the time of discovery or the date of service, it is possible to file a complaint against the processes carried out and the decisions taken by the directorate regarding the fulfillment of the judgments or injunctions for child delivery or establishment of personal relations with the child, in which case the complaint shall be submitted to the family court at the location of the directorate that has carried out the process…’’
Provisions regarding the initiation of enforcement proceedings in respect of monetary receivables arising from subscription agreements
With the Law, an amendment is brought for the law on procedures of initiation of enforcement proceedings concerning monetary receivables originating from subscription agreements. Pursuant to the amendment, the time limit for requesting seizure under subscription agreements is increased from 2 years to 5 years. Accordingly, the enforcement proceedings may be made null and void in case there is no seizure request within 5 years following the service of the payment order related to the debt arising from a subscription agreement within this context.
‘’ARTICLE 56 – Contained in the fourth paragraph of Article 8 of the Law dated 6/12/2018 and numbered 7155 on Procedures of Initiation of Enforcement Proceedings Concerning Monetary Receivables Originating from Subscription Agreements, the number “two” is hereby amended as “five”.
REFERENCE
https://www.resmigazete.gov.tr/eskiler/2021/11/20211130-1.htm
