Attachment-Based Enforcement Specific to Negotiable Instruments
Claims based on a check, promissory note or bill of exchange may, if the statutory conditions are met, be enforced through the attachment route specific to negotiable instruments (kambiyo takibi). This route has a payment order, time limits and an objection system different from general attachment enforcement.
Before enforcement, the following are examined:
- The status of the instrument as a negotiable instrument
- Whether the creditor is the legitimate holder
- The debtor’s capacity under the instrument
- The availability of the original instrument and the required records
- Maturity, presentment, protest and limitation
- The competent enforcement office
- The principal claim, interest, commission and expense items
- The effect of a pledge or other security on the enforcement
- The status of composition with creditors (konkordato), bankruptcy or restructuring
Starting the enforcement does not by itself preserve the time limits of all civil and criminal applications arising from the instrument.
Objection to Enforcement on Negotiable Instruments and Complaints
In enforcement on negotiable instruments, the time limits for applying against the payment order are very short. The method of service, the date of learning, whether the application is to be made to the enforcement court or to another court, and whether it will stop the enforcement must be determined immediately.
The main grounds for application:
- Objection to the debt
- Objection to the signature
- Objection to jurisdiction
- Partial payment or discharge
- A grace period (imhal) or an allegation that the claim was postponed
- Limitation
- The instrument not having the status of a negotiable instrument
- The creditor not being the legitimate holder
- Maturity not having arrived or the right to enforce not having arisen
- Deficiencies in presentment and protest
- Inconsistency between the enforcement request and the payment order
- Irregular service
- Objection to interest and ancillary claims
An objection or complaint before the enforcement court and a negative declaratory action to be filed in a general court are not the same legal route. The scope of the application, the method of proof, the time limits and the effect on the enforcement must be assessed separately.
Precautionary Attachment and Other Temporary Legal Protection
For money claims that are not secured by a pledge and have fallen due, precautionary attachment may be requested under the conditions of the Enforcement and Bankruptcy Law, Art. 257. For claims that have not yet fallen due, the special conditions stated in the law are required. On the debtor’s side, if forgery, lack of consideration, payment or a manifest violation of law is alleged, statutory protective routes aimed at limiting the effects of the enforcement or of the payment may be considered.
In this context:
- Conditions for precautionary attachment and the competent court
- A claim that is due, or that is not yet due under the conditions in the law
- Prima facie proof of the instrument and of the claim
- Security and implementation of the decision
- Objection to the precautionary attachment
- Loss arising from an unjustified precautionary attachment
- Interim protection in a negative declaratory action
- A payment ban in an action to cancel a lost instrument
- Safekeeping of a forged or altered instrument
- Taking of evidence and preservation of bank records
are addressed. Precautionary attachment and an interim injunction are not the same legal protection; it must be determined whether the request is aimed at a money claim, at the use of the instrument, or at protecting a particular legal relationship.
Limitation, Presentment, Protest and Complaint Periods
For checks, promissory notes and bills of exchange, the periods vary according to the type of document, the form of maturity, the debtor’s capacity, the presentment or protest procedure, and the legal route taken. The right of recourse based on a check, recourse against the issuer or an endorser on a promissory note, recourse against the acceptor and other liable parties on a bill of exchange, negative declaratory action, recovery of payment, cancellation, and the complaint for a check returned for lack of funds are not subject to the same period.
For this reason, a separate time schedule must be prepared in each file:
- Issue date and maturity date
- The presentment period for payment
- The protest or equivalent finding date
- Notice periods
- Limitation for enforcement on negotiable instruments and for recourse
- Service of the payment order and the objection period
- The relevant periods for negative declaratory action and recovery of payment
- Urgency with regard to loss and a payment ban
- The complaint for a check returned for lack of funds and the periods for legal remedies
- Limitation of the claim arising from the underlying relationship
That the instrument is time-barred under the limitation specific to negotiable instruments law may not mean that all rights arising from the underlying relationship also end at the same time and automatically. Possibilities such as the underlying relationship, unjust enrichment and the beginning of written evidence must be assessed separately.
Distinguish Five Days from Ten Days in the Payment Order
In the attachment route specific to negotiable instruments, as a rule there is an application period of five days from service for objections to the debt, the signature and jurisdiction, and for special complaints concerning the status as a negotiable instrument and the right to enforce. The period for payment is ten days. Not every ground of complaint is subject to the same period; the possibilities of a general complaint and of a complaint not subject to a time limit are examined separately.
Where is the objection made, and does it stop the enforcement?
In this route, objections to the debt and the signature are made to the enforcement court. An objection does not by itself stop enforcement acts other than the sale. If the necessary conditions are met, a temporary stay is requested from the court. The procedure for objecting to the enforcement office in general attachment enforcement does not apply directly here.
Keep the UETS and service record
UETS is the National Electronic Notification System. Electronic service is deemed made at the end of the fifth day following the day it reaches the addressee’s electronic address. Not reading it or not seeing an SMS does not by itself postpone the period. For postal service, the envelope, the receipt and the delivery procedure are examined; for notices by Registered Electronic Mail (KEP), the legal basis of the act itself is examined. KEP is not the same system as UETS.
Limitation in negotiable instruments is not a single period
For claims on a negotiable instrument against the issuer of a promissory note and the acceptor of a bill of exchange, the rule is three years from maturity. For the holder’s recourse against endorsers and the issuer on a bill of exchange, the period is one year; for the recourse of endorsers against one another and against the issuer, the starting points of the six-month periods are determined separately. The provisions applicable to the promissory note, the capacity of the party and the protest conditions are examined together. For a check, the three-year period running from the end of the presentment period, with regard to the holder’s recourse, is not identical to the period in the underlying relationship.
Do not leave protest and notice to the end
For a bill of exchange payable on a fixed day, or at a fixed period after the date of issue or after sight, the protest for non-payment is drawn up within two business days following the payment day. For the promissory note, the applicable provisions and the liable party who is addressed are assessed separately. A bill payable on sight, a clause waiving protest, notice and force majeure provisions may produce different results.
These explanations are not an automatic calculation of periods. The service procedure, holidays, interruption, suspension and transitional provisions are assessed against the dates in the file.