How To Pursue A Claim Based On A Bill Of Exchange?
The Enforcement and Bankruptcy Law specifically regulates enforcement proceedings based on negotiable instruments through attachment, distinguishing them from general attachment proceedings. Negotiable instruments are valuable documents; however, it is not sufficient for the document forming the basis of the claim subject to enforcement to be a valuable document; it must be one of the negotiable instruments. Negotiable instruments are specified in the law in a limited number, and there are three of them. These are: Promissory Note (Order Negotiable Instrument); Bill of Exchange and Draft. If the document on which the claim subject to enforcement is based is not one of these three negotiable instruments, enforcement cannot be pursued through the attachment procedure specific to negotiable instruments.
A creditor whose claim is based on a negotiable instrument is not required to first resort to the pledge, even if the claim is also secured by a pledge. This situation constitutes an exception to the requirement to first resort to the pledge. Although the enforcement procedure specific to bills of exchange contains more privileged provisions for the creditor than the general enforcement procedure, the creditor is free to choose the enforcement procedure they wish. However, while the period for objecting to a payment order is 7 days in general attachment proceedings, it is 5 days in proceedings specific to bills of exchange. Furthermore, while the debtor’s objection to a payment order in general attachment proceedings automatically suspends the proceedings, such an objection in attachment proceedings specific to bills of exchange does not suspend proceedings other than the sale. If the creditor applies for enforcement specific to bills of exchange, the limitation periods applicable to bills of exchange will apply, whereas if the creditor applies for general attachment, the general limitation periods will apply. III-) REQUEST FOR ENFORCEMENT In the collection of a bill of exchange through the attachment procedure specific to bills of exchange, the creditor must attach the original bill of exchange and a certified copy for each debtor to the request for enforcement, in addition to the items required under Article 58 of the Enforcement and Bankruptcy Code (EBC) in enforcement through general attachment. This is because, pursuant to Article 168/1 of the EBC, the enforcement director and, pursuant to Article 170a/2 of the EBC, the enforcement court must investigate ex officio whether the bill in question has this characteristic, and therefore the bill subject to enforcement must be submitted to the enforcement office together with the request for enforcement.
REASONS FOR OBJECTING TO THE DEBT IN ENFORCEMENT PROCEEDINGS BASED ON A BILL OF EXCHANGE:
*In enforcement proceedings based on a bill of exchange, even if the bill has not been protested, default interest may be claimed from the drawer from the due date.
*In enforcement proceedings based on a check without sufficient funds, the creditor may demand interest for the period between the date of presentation or exchange of the check and the payment date, calculated progressively and at the discount (advance) rate.
*In enforcement proceedings based on a document that is not considered a promissory note because it does not have a “date of issue,” only statutory interest may be demanded from the debtor; discount interest cannot be demanded.
*The debtor’s objection that they are not liable due to “instruments without their signature” constitutes an “objection to the debt.”
*If the drawer has been protested, proceedings may be brought against the holder and the endorser.
*An objection that the instrument has been tampered with by adding two zeros to the amount is accepted as an objection to the debt.
*Claiming that the bill subject to enforcement is a security bill constitutes an “objection to the debt.”
*A debtor who accepts the debt (interest rate) during provisional attachment cannot subsequently object to the debt before the Enforcement Court (İ.T.M.).
*The creditor cannot demand “maturity difference” in addition to “delay interest” from the debtor.
*If it is understood that the bonds subject to enforcement were issued for the payment of the mortgage amount rather than as collateral for the mortgage, it cannot be accepted as an objection to the debt.
*If the ordinary partnership was dissolved before the date of issuance of the check, only the partner whose signature appears on the check is liable for the amount of the check.
*A person who signs a bill of exchange as a “guarantor” is liable for the amount of the bill as a “joint and several guarantor,” even if they did not specify that they were a “joint and several guarantor.”
*The drawee cannot pursue collection through attachment specific to bills of exchange on the grounds that the check endorsed to him is “uncovered.”
*The claim that the check was altered on the date of issue does not constitute an objection to the debt.
*The value of the stamp affixed to the bill may be subject to collection through attachment based on bills of exchange.
*Objections to the “accrued interest amount,” “interest rate,” and “check indemnity” are accepted as objections to the debt.
*An endorsement made on a check made payable to the bearer does not change the nature of the instrument, converting it into a check made payable to order.
*If the check amount has been paid before enforcement proceedings, no separate proceedings may be initiated for the interest and check indemnity attached thereto.
*A creditor who waives enforcement cannot subsequently revoke this waiver.
*When accepting partial payment after enforcement, the creditor is not required to additionally assert a “reservation of rights.”
*If a blank check issued in Turkish lira is filled out as a foreign currency claim, the debtor’s objection to the debt must be accepted.
*Partial payments agreed upon as a result of an expert examination of the markings on the back of the bill of exchange may also be asserted against the holder of the bill of exchange.
*Objections regarding the promissory note cannot be accepted as objections to the debt.
*A creditor who waives enforcement cannot subsequently revoke this waiver.
*When accepting partial payment after enforcement, the creditor is not required to make any “reservation of rights.”
*If a blank check issued in Turkish lira is filled out as a foreign currency claim, the debtor’s objection to the debt must be accepted.
*Partial payments determined as a result of an expert examination of the markings on the back of the bill of exchange may also be asserted against the holder of the bill.
*Enforcement without a court order cannot be based on a check that has been torn and then glued back together.
*If only “interest” is requested in the enforcement request, statutory interest shall be awarded.
*If the check is not presented to the drawee bank after the presentation period has expired, the drawer cannot be held liable for the check amount.
*The debtor (drawer) cannot revoke the check within the presentation period.
*Any claim of alteration must be reported to the I.T.M. within 5 days with a separate petition.
*The heirs against whom enforcement is directed due to the debt of the deceased drawer are jointly and severally liable.
*The word “return” written between two parallel lines on the face of the promissory note indicates that the instrument has been canceled.
*Every signature on the face of a negotiable instrument constitutes an “aval,” and every signature on the back constitutes an “endorsement.”
*Legal interest may be claimed in proceedings based on instruments that do not qualify as promissory notes.
*A debtor who objects to the debt is also deemed to have objected to the interest.
*A cancellation ruling obtained by the drawer against the payee is not effective against the holder who is not a party to the lawsuit.
*Claiming that the instrument subject to enforcement has become time-barred constitutes an objection to the debt.
*Enforcement may be pursued against the joint guarantor together with or separately from the principal debtor.
*Even for bills of exchange that have not been presented, the debtor is obliged to pay “default interest” from the due date.
The debtor may file an objection with the Enforcement Review Authority within 5 days based on the above reasons. However, this objection only suspends the sale and does not suspend other enforcement proceedings, as it is separate from the general enforcement procedures.
* If the objection to the debt is rejected and the creditor’s claim is upheld, the debtor shall be ordered to pay damages for denial. If the objection to the debt is accepted and the debtor’s claim is upheld, the creditor shall be ordered to pay damages for denial.
* If the objection to the signature is rejected as a result of the expert examination, damages for denial shall be awarded against the debtor even if no claim is made. If the objection to the signature is accepted, regardless of the reason, damages for denial shall not be awarded against the creditor even if a claim is made.
* If the creditor’s bad faith is determined in the objection to the signature, a 10% fine shall be imposed against the creditor.
In addition, the debtor may file a complaint with the Enforcement Review Authority (Enforcement Court) regarding the enforcement proceedings within 5 days based on one of the following reasons:
1-FORM OF ENFORCEMENT (Complaint that enforcement cannot be carried out by the method specific to bills of exchange on the grounds that the underlying document does not qualify as a bill of exchange)
2-STATUS OF THE HOLDER (Complaint that the creditor is not the legitimate holder)
3-STATUTE OF LIMITATIONS COMPLAINT
If any of these circumstances exist, the creditor may request the Enforcement Review Authority (Enforcement Court) to lift the objection within 6 months.