Recent development
The Decision of the Court of Cassation General Assembly on the Unification of Judgments dated 3 June 2022 and no. 2021/1 E., 2022/3 K. (“Unification of Judgments Decision“) was published in the Official Gazette on 26 November 2022. Pursuant to the Unification of Judgments Decision, even if the debtor against whom an execution proceeding has been initiated objects to the proceeding through their attorney, the statement of claim for the actions for the annulment of objections to the execution proceedings to be filed by the creditor must be served to the principal (the debtor), not the attorney.
What does this development mean?
The debtor against whom execution proceeding has been initiated may stop the proceeding by objecting to the payment order within the time limit. In this case, the creditor must file a lawsuit for the annulment of objection in order to ensure the continuation of the suspended proceeding. There was a difference of opinion among different chambers of the Court of Cassation as to whether the statement of claim for the actions for the annulment of objections to the execution proceedings should be served to the principal or the debtor’s attorney. While the 11th Civil Chamber of the Court of Cassation was of the opinion that the service should be made to the attorney, the General Assembly of the Court of Cassation, the 3rd, (closed) 15th and (closed) 22nd Civil Chambers of the Court of Cassation were of the opinion that the service should be made to the debtor, not to the attorney. The 9th and 13th Civil Chambers of the Court of Cassation (closed) had decisions in both directions. With the Unification of Judgments Decision, these differences of opinion were resolved and it was decided that the statement of claim in the actions for the annulment of objections to the execution proceedings to be filed by the creditor should be served on the debtor, not the attorney.
In the reasoning of the Court of Cassation General Assembly on the Unification of Judgments, the Court briefly states: Pursuant to Article 67/1 of the Execution and Bankruptcy Code, the actions for the annulment of objections to the execution proceedings is a lawsuit subject to general provisions, and accordingly, the proceedings will be conducted as per the provisions of the Code of Civil Procedure (CCP). Pursuant to Articles 122 and 317 of the CCP, the service of the statement of claim to the principal is regulated as a mandatory provision. Therefore, it is ruled that the statement of claim must be served on the principal (debtor), not the attorney. Pursuant to these grounds, the service of the statement of claim in the annulment of objections to the execution proceedings case on the attorney instead of the defendant debtor will constitute a violation of the mandatory provisions of the CCP. Unification of Judgements Decision provides clarity on this issue and it is binding for the General Assembly and chambers of the Court of Cassation, and courts.
Conclusion
There were conflicting opinions among various chambers of the Court of Cassation as to whether the statement of claim for the actions for the annulment of objections to the execution proceedings should be served to the attorney or the debtor. This conclusion reached in the Decision of the Board of the Unification of Case Law resolved the contradictions. Accordingly, even if the debtor against whom an execution proceeding is initiated objects to the execution proceeding through their attorney, in the action for annulment of the objection to be filed by the creditor, the statement of claim must be served to the principal (the debtor).
