Postponement of Execution & Mehil Document

2022-02-15T15:29:32+00:00 11 March 2021|

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WHAT IS THE EXECUTION AND EXECUTION CERTIFICATE?

The fact that a case file that has been decided has been appealed does not automatically suspend its execution. The debtor who wants to stop the execution will appeal the file with a request for postponement of execution and will follow the relevant procedures. Otherwise, even if the file is sent to appeal, the creditor may proceed to foreclosure at the stage of enforcement proceedings. Enforcement proceedings will be suspended until the case file for which the execution decision has been taken is returned from the Court of Cassation or the appellate court. In practice, this situation is called adjournment of execution.

The debtor party may not want to make a payment while the case file is under review in a higher court, and may avoid payment. There is no final court decision yet.

In this case, there are two options that the debtor can try but will end up in the same way.

  • While the debtor appeals the local court decision, he/she specifies the requests for postponement of execution and can wait for a decision from the Supreme Court. In this case, the Court of Cassation accepts or rejects the execution and it is determined by the Court of Cassation whether the local court decision can be enforced or not.
  • The second option is for the debtor who did not or forgot to specify the deferral enforcement request while appealing. When the creditor wants to collect the local court’s decision through the enforcement channel, first of all, you receive a statement from the local court that it has appealed this decision, and after you deposit a security in the directorate, where the enforcement proceedings have started, from the executive director to the account of the directorate, you send your request for enforcement to the Court of Cassation and the Court of Cassation concludes it. You request an appropriate amount of time to respond. The Executive Director will give the debtor an appropriate period of time if he meets the conditions in Article 36 of the Enforcement and Bankruptcy Law. This deadline given by the Executive Director is not a final decision like execution. to the debtor; It is a period of time for the Court of Cassation to request execution and for the Court of Cassation to decide on this request and notify the parties of the case. The period in question will start to run from the day your case file goes to the Supreme Court.

How is the Decision of Suspension of Enforcement Taken?

First of all, the court file should be appealed with a request for postponement of execution. It is not possible to get an opinion from the court on this issue in the petitions of appeal against which the postponement of execution is not requested. However, in practice, an application can be made to the court with a petition requesting additional postponement.

  • A statement should be taken from the court that the file has been appealed with a request for postponement of execution, and the receipt should be given to the executive directorate where the enforcement file was opened.
  • Before giving grace to the debtor, the enforcement office calculates the amount of collateral to be deposited for enforcement. The amount of the guarantee is calculated including the current version of the execution file and the interest to be processed for 3 months.
  • Borrower as collateral; cash, bank letters of guarantee or movable and real property that are not lien on.
  • The enforcement office will ask the enforcement court for an opinion on the suitability of the guarantee. If the enforcement court does not find the guarantee appropriate, the request is rejected. In practice, it is seen that cash or letters of guarantee are generally stored, since cash or a bank letter of guarantee will not create a problem regarding the suitability of the guarantee.
  • Then, the executive directorate gives a certificate of grace to the debtor. In practice, the certificate of grace is generally given for 60 days. However, if the request is justified, an additional 30-day period may be given to the debtor by the enforcement office for once only. The debtor party must also submit the additional certificate of grace to the appellate authority. The start date of the grace certificate is the day the case file goes to the court of appeal or appeal.
  • The certificate of grace taken must be submitted to the court where the case file is heard in order to be sent to the Court of Cassation or the court of appeal. The debtor or the debtor’s attorney should pay attention to the duration of the grace certificate. If the deferment of execution decision is not submitted to the enforcement file within the period of the certificate of grace, the creditor may request the cash to be given if the collateral is cash, and the bank may request the equivalent of the letter of guarantee.
  • The Court of Cassation or the appellate court examines the request for postponement. If the request for postponement is deemed appropriate, it decides to postpone the execution and sends the file to the local court.
  • If the Supreme Court reverses the decision, the debtor will be able to get back the entire amount deposited as collateral from the enforcement office. If the decision is upheld by the Supreme Court, this time the creditor will collect the debt from the amount deposited as collateral in the execution file.

Av. DİLAN ECEM CEYLAN

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