I. INTRODUCTION
When a creditor applies to the enforcement office, either orally or in writing, for the recovery of a debt, if the subject of the enforcement is based on a promissory note, the date and summary of the note must be included in the enforcement request. If the enforcement is not based on a promissory note, the cause of the debt must be specified in the enforcement request. The case at hand involves a decision issued by the 3rd Civil Chamber of the Court of Cassation dated September 30, 2024, related to the execution proceeding initiated by Ankara 17th Enforcement Office under file number 2022/19255, based on violations of toll payments on highways and bridges. The Court of Cassation issued a significant ruling emphasizing the proper preparation of the payment order in enforcement cases and the issue of the lack of preliminary requirements for lawsuits in cancellation of objection cases. This decision serves as a guiding precedent, particularly highlighting the necessity of specifying the cause of the debt in the enforcement request, which constitutes a cornerstone in enforcement law.
II. BASIC PRINCIPLES
1. Payment Order in Enforcement and Cancellation of Objection Case
In enforcement proceedings, the payment order is a document sent to the debtor by the enforcement directorate, which forms the basis of the proceedings without judgment. Pursuant to Articles 58 and 60 of the Enforcement and Bankruptcy Law, the payment order must clearly state the reason, amount and basis of the debt. If the source of the debt is not sufficiently explained in the payment order, the debtor's right of defense will be violated, as the debtor will not know on which legal grounds he is made indebted. This situation is considered as an irregularity that directly affects the rights of the debtor in the enforcement law. According to the case law of the Court of Cassation, if the basis of the debt is not clearly stated, the objection of the debtor should be considered justified and the cancellation of objection case should be rejected.
The action for annulment of objection is a performance action regulated pursuant to Article 67 of the Enforcement and Bankruptcy Law and based on the claim that the debtor's objection is unjustified. This type of action, where the creditor applies for the removal of the debtor's objection and the continuation of the enforcement proceedings, can only be accepted if it is based on a valid and duly executed payment order.
Courts are obliged to examine the conditions of the lawsuit ex officio within the framework of Articles 114 and 115 of the Code of Civil Procedure No. 6100. In this context, if the payment order does not specify the reason for the debt, the court should dismiss the case procedurally. As a matter of fact, in the recent decisions of the 3rd Civil Chamber of the Court of Cassation, it has been emphasized that if the payment order is issued incompletely, the cancellation of objection case cannot be heard. Therefore, in the enforcement law, it is obligatory for the creditors to issue the payment order completely and in accordance with the law; otherwise, the legal protection of the creditor will be weakened and the proceedings will not be able to proceed.
2. The Dispute in the Concrete Case and the Claims of the Parties
The plaintiff's attorney claimed that an enforcement proceeding was initiated under file number 2022/19255 of Ankara 17th Enforcement Office for the collection of unpaid tolls and fines resulting from the defendant's illegal passage through the highway and bridge operated by the plaintiff's company. The payment order was served to the defendant, and when the debtor objected to the entire debt, the enforcement was halted. The plaintiff requested that the objection be canceled, the enforcement proceeding be continued, and that an enforcement refusal compensation of at least 20% be imposed.
The defendant's attorney argued that although the principal debt was mentioned in the enforcement request, there were vague items, such as the annual interest in parentheses, and no explanation was provided about the cause of the debt in the relevant section of the payment order. The defendant contended that they could not understand the reason for the debt, which led to the objection, and requested the dismissal of the case along with the imposition of a 20% bad faith compensation.
3. First Instance Court Decision and Appeal Process in the Interest of the Law
The Court of First Instance concluded that the defendant entered and exited from the highway belonging to the plaintiff company on 28.07.2022 without paying the toll, that the violated toll could not be collected, and that the plaintiff was right to demand the collection of the toll amount and the fine arising from the law, which were not paid within the legal period.
The Court also concluded that the defendant's claim that the payment order was not in accordance with the procedure was within the jurisdiction of the Execution Examining Authority and that the receivable subject to the proceedings was considered as one of the debts to be taken away and decided to accept the case. However, while the objection to the execution proceeding initiated through the file numbered 2022/19255 E. of Ankara 17th Execution Directorate was canceled and the proceeding was ruled to continue, the claim for execution denial compensation was rejected.
Appeal in the interest of the law is an extraordinary legal remedy that enables the Ministry of Justice to take final court decisions to the Court of Cassation for identifying legal violations and correcting such errors. It is regulated under Article 363 of the Civil Procedure Code and Article 309 of the Criminal Procedure Code, and it is not a recourse available for the parties to use directly, as it depends on the discretion of the Ministry of Justice. In this process, if the Ministry identifies that a final decision contains a clear violation of public order or the law, it applies to the Court of Cassation with a request to annul the decision in the interest of the law. In practice, errors related to procedure, violations of the fundamental rules of the trial, and instances where a clear violation of the law is found in court decisions may require an appeal in the interest of the law.
Courts must take the decisions of annulment in the interest of the law into account and are obligated not to repeat the same errors in similar cases. Therefore, appeal in the interest of the law both ensures consistency in the legal system and establishes a monitoring mechanism to eliminate unlawful practices. In the decision of the 3rd Civil Chamber of the Court of Cassation dated September 30, 2024, appeal in the interest of the law was implemented by referring the final court decision to the Court of Cassation for the examination of its legal violations by the Ministry of Justice. In this process, the Ministry sought to examine whether the decision of the local court regarding the cancellation of the objection case was in accordance with the law and to prevent courts from making similar errors in the future. In the Ministry's application, it was argued that the failure to clearly state the cause of the debt in the payment order violated the debtor's right to defense and constituted a violation of enforcement law.
4. Evolution and Decision of the Court of Cassation
As a result of examining the case file, it was determined that an enforcement proceeding was initiated through the Ankara 17th Enforcement Office under file number 2022/19255 due to the defendant's vehicle making an illegal passage without paying the highway toll. The enforcement was halted when the debtor defendant objected to the proceeding. In the cancellation of objection case, the defendant claimed in their defense statement that the enforcement request and the payment order did not clearly state the cause of the debt. According to Articles 58 and 60 of the Enforcement and Bankruptcy Law No. 2004, it is mandatory to specify the cause of the debt.
In the legal part of the decision, reference is made to the ruling of the 13th Civil Chamber of the Court of Cassation, numbered 2012/28759 E. 2013/8988 K., in which it was stated that, under Article 58/4 of the Enforcement and Bankruptcy Law, it is mandatory to clearly specify the cause of the debt in the enforcement request in order to protect the debtor's right to evaluate the source of the claim and, if necessary, to object. In the present case, although the enforcement request claimed a debt based on certain invoices, there was a discrepancy between the total amount of the invoices and the claimed amount, and the request did not provide an explanation based on a current account relationship. This situation not only hinders the debtor from making a proper objection to the claimed debt but also complicates clarifying the basis of the claim during the trial. The Court of Cassation found it incorrect for the court to consider a legal relationship (current account) not included in the enforcement request and emphasized that the enforcement request should be clear, precise, and consistent.
In the decision of the Court of Cassation General Assembly numbered 2019/218 E. 2022/274 K., although the enforcement request specified the cause of the debt as 'credit card membership agreement, notice, and account summary,' the court made an evaluation based on a general credit agreement and issued its ruling. The Court of Cassation found it legally incorrect for the court to base its decision on a cause of debt that was not explicitly stated in the enforcement request and annulled the court's decision. In the cancellation of objection case, the creditor is bound by the cause of the debt indicated in the enforcement request and cannot introduce a new legal basis. Therefore, although the credit card membership agreement was stated in the enforcement request, the court's decision to review the general credit agreement was not legally correct. The Court of Cassation emphasized that considering a legal relationship not mentioned in the enforcement request by the court would violate the debtor's right to defense and would contradict the fundamental principles of enforcement law. However, the dissenting opinion in the relevant decision argues that the notice attached to the enforcement request clearly stated that the source of the debt was the general credit agreement, and therefore, the debtor could have known the basis of the claim. The dissenting members contend that the error in stating the wrong legal basis in the enforcement request could be corrected through the content of the notice and that it would be more equitable for the court to base its decision on the actual legal relationship. This view emphasizes that enforcement law should not be merely a procedural formality and that taking the actual source of the claim into account by the court would protect the creditor's rights.
Parallel to all the reasons mentioned and the decisions cited as examples, the Court of Cassation found it procedurally and legally incorrect for the court to accept the case instead of dismissing it on procedural grounds due to an erroneous assessment and issued a ruling for the case to be overturned. As a result, the Ministry of Justice's appeal in the interest of the law based on the first paragraph of Article 363 of the Civil Procedure Code was accepted, and the Court of Cassation unanimously decided to annul the decision without affecting the outcome.
III. CONCLUSION
The decision of the 3rd Civil Chamber of the Court of Cassation dated September 30, 2024, constitutes an important precedent regarding the preparation of the payment order in enforcement proceedings. The key emphasis of the decision is that the cause of the debt must be clearly stated in the payment order, and if these elements are missing, a violation of enforcement law will arise. Courts are obliged to examine the conditions of the lawsuit ex officio in cancellation of objection cases and cannot issue a judgment based on enforcement actions that do not comply with procedure. In this context, creditors must carefully draft the content of the payment order when initiating enforcement proceedings, clearly stating the basis of the debt in a manner that leaves no room for doubt. For debtors, it is crucial to object within the time limit if they face an incomplete or unlawful payment order, and if a cancellation of objection case is filed, they must form their legal defenses by taking into account the preliminary requirements of the lawsuit. The decision is expected to guide practices in enforcement law, especially with its emphasis on strengthening debtor rights and highlighting the court's obligation to examine these conditions ex officio.
The full text of the Court of Cassation decisions can be accessed here:
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