In short
In an unpaid claim the first work is to bring together the documents that show the maturity date, the debtor's identity and the payments. An attachment does not take the place of this check. Commercial collection is in a separate article; the competent office is read separately.
The first practical order
- Separate whether the claim is consumer or commercial.
- Serve the notice; do not expect an attachment at once.
- If there is no judgment, the request text is in the article on a request for proceedings without a judgment. If there is a judgment, the door is in the article on how proceedings with a judgment are started.
The everyday expression in the heading is built the other way round technically: the person who owes you and is not paying is, in legal language, the debtor, and you, who ask for your claim, are the creditor. If you have an unpaid claim, the first work is to gather in a single file the maturity date, the debtor's correct identity, and the documents that show the principal and the payments. Then it is determined which of the options of a written request, mediation, an action or enforcement proceedings is suitable.
The debtor's saying I will pay does not remove limitation and the risk to the evidence. Starting enforcement proceedings at once at every delay may not be correct either; if the claim is not yet due, if the amount is debated, or if it is directed at the wrong person, a risk of expense and of compensation can arise. This article is for general information; a definite result of collection cannot be said before the contract, the capacity of the parties and the documents are seen.
Clarify the legal basis of the claim
The first question of the collection process should not be how much of a claim do I have, but from which legal relation did this claim arise. The claim can be connected with one of these sources:
- Sale of goods or of a service
- A loan of money
- A lease relation
- An employment claim
- A cheque, a promissory note or a bill of exchange
- A current account and an invoice
- A court decision or a mediation agreement
- A tort, or unjust enrichment
The source changes the competent court, the limitation, the condition of mediation and the path of the proceedings. A commercial claim based on an invoice, and a debt you gave to a friend, for example, are not assessed inside the same frame of evidence and of procedure.
The debtor's identity should also be determined correctly. Personal proceedings against a partner of the company may not be possible for goods taken in the company's name. A sole proprietorship, an ordinary partnership, a limited company and a suretyship relation are separated from each other. The title, the tax number, the trade registry and the authority to sign should be checked.
The check of maturity and of default
Starting compulsory proceedings before the maturity of the claim arrives can meet an objection. If the contract has a definite day of payment, the debt often becomes due on that date. If the maturity was not determined, a call for suitable performance may need to be made to the debtor. In some debts the statute or the contract foresees a special condition of notice.
These dates should be shown in a single chronology:
- The date of the contract or of the order
- Delivery of the goods, or completion of the service
- The invoice and the maturity date
- The debtor's correspondence of acceptance or of objection
- The partial payments that were made
- The date of the notice and of default
The start of interest is also tied to these dates. The interest that can be applied in commercial affairs, and the interest in a consumer or an ordinary debt relation, may not be the same. The validity and the rate of the interest record in the contract are examined separately.
How is the evidence file prepared?
The thought that everyone knows this debt is not enough in court. The arising of the claim, its amount and its maturity should be proved. Although the evidence changes according to the relation, these are important:
- The signed contract and its annexes
- Correspondence of the order, the offer and the acceptance
- The invoice, the dispatch note and the delivery minute
- Bank transfers, and the descriptions on the slips
- E-mail and message records
- A current-account reconciliation
- A cheque, a promissory note, or a written acknowledgement of the debt
- Records relating to a claim of a defect, of incomplete delivery, or of a return
When a screen image is taken, the date, the sender and the whole of the conversation should be preserved. A single cut message can be debated by the other side on the ground that it is detached from its context. Digital records must be obtained lawfully.
The invoice is not, in every case, an instrument that proves the debt definitively by itself. Supporting it with records of delivery and of acceptance is important. In a similar way a bank transfer can support the claim of lending; the description of the transfer and the relation of the parties determine why the money was sent.
The written request and the notice
Sending the debtor a written request for payment determines the limit of the dispute. Although a notarial notice is not compulsory in every claim, it secures proof of the service and of the content. Registered electronic mail, or the method of notification agreed in the contract, can also be used according to the concrete relation.
These elements should be open in the notice:
- The basis of the claim
- The principal, and the interest account if there is one
- The deduction of the payments made earlier
- The period given for payment, or the existing maturity
- The verified account to which the payment will be made
- The legal paths that will be assessed if there is no payment
Expressions such as a threat, an insult, or I will disgrace you can make the creditor a party to another dispute while they are in the right. The aim is not to build pressure, but to notify the debt and the request in a way that can be checked.
Enforcement proceedings, or an action?
Proceedings without a judgment by way of general attachment for a money claim can be started even if the creditor does not have a court decision in hand. If the debtor does not object to the payment order in time, the proceedings can become final. If they object, the proceedings stop, and the creditor must apply to the judicial path.
A direct action for the claim can be preferred especially in files where there is a debate on performance of the contract, a defect, a set-off, a counter-claim, or a complex account. After the court decision, the path of enforcement with a judgment is passed to.
The comparison can be made with these criteria:
Start: a quick request for a money claim (examination of the petition and of the evidence). Document: it may not be compulsory at the opening of the proceedings (it is necessary for proof). The debtor's answer: an objection can stop the proceedings (the defence is taken inside the trial). The later path: lifting or setting aside of the objection (proceedings with a judgment after the decision). Suitability: an open and due claim (a complex dispute whose merits are debated).
For the difference between the kinds of proceedings, the guide on proceedings with a judgment and without a judgment can be examined. Generalisations in the form enforcement is always faster, or an action is necessarily required first, are not correct.
Check whether mediation is required
In commercial money claims, employment claims, and some consumer disputes, mediation before the action can be a condition of the action. If an action is brought before the kind of the dispute is classified correctly, a risk of refusal on procedure arises.
Mediation can provide these benefits:
- Early clarification of the debt and of the objections
- An agreement on instalments, security and maturity
- Controlled continuation of the commercial relation
- Building a payment plan that is enforceable and open
In the agreement text the amount, the payment date, the account, the result of default, the scope of the waiver, and the state of the existing enforcement file should be written. A general text in the form the parties agreed can produce a new problem at the stage of collection.
Holding a mediation meeting is not, in every case, an obstacle to starting enforcement proceedings; the later action and the strategy of the proceedings must not contradict. The content on how a commercial claim is collected explains the special preparation in commercial relations.
If the debtor objects
In proceedings without a judgment by way of general attachment, the debtor's timely objection can stop the proceedings. For the creditor the file does not end at this point. According to the character of the document in hand, lifting of the objection or setting the objection aside can be assessed.
Lifting of the objection can run, if the documents the statute looks for exist, with a more limited examination at the enforcement court. Setting the objection aside is the action in which the merits of the claim are examined at the general court. The periods and the conditions for bringing the action are different. When the objection is served, this preparation should be made rather than waiting:
- Separate which items the debtor objected to.
- If there is an objection to jurisdiction, assess the place of the proceedings.
- Compare the claims of payment and of set-off with the bank records.
- Determine the competent court and the condition of mediation.
- Arrange the evidence in a way that fits the petition of the action.
An objection to enforcement proceedings is an important threshold that also affects the creditor's later path. Ignoring the objection and continuing to ask for an attachment does not give a result, and can give birth to expense.
The risk of the debtor concealing assets
If there are concrete indications that the debtor is disposing of their assets, paths of protection such as a provisional attachment or an action to set a transaction aside can come onto the agenda. These paths are not the same as each other.
A provisional attachment aims to secure a money claim temporarily, and it can require approximate proof and security. An action to set a transaction aside aims to have certain transactions of the debtor, which carry the purpose of concealing assets from the creditor, counted as without effect against the creditor. The date the claim arose, the parties of the transaction, the sale price and the debtor's inability to pay are important.
Not every sale made to a relative, or every transaction at a low price, is set aside automatically. Land-registry and registry researches should be made through lawful channels; a threat should not be directed at third persons with an abstract suspicion.
Attachment, and the ability to collect
The proceedings becoming final does not guarantee that the money will be collected at once. The debtor must have attachable property and rights. Bank accounts, a wage, a vehicle, immovable property, commercial claims and rights at third persons can be researched.
From the creditor's side, management of the file contains these steps:
- Updating the debtor's correct identity and address information
- Building the attachment requests in a measured way, and limited to the file debt
- Examining the answers that come from the bank and from the institutions
- Comparing the expense of sale of the attached property with the possible return
- Entering the collections on the file account
- Following the periods of limitation and of the request for sale
Asking for a sale for property of low value and of high expense may not be economical. The aim is not to punish the debtor, but to collect the claim in a lawful and measured way.
A partial payment and a restructuring
If the debtor makes a partial payment, it should be taken on the record by stating to which debt the payment was set off. If there is more than one invoice or file, a payment without a description creates a debate. The creditor's not deducting the same amount from the balance of the proceedings can lead to a claim of a duplicate collection.
These headings can be written in an instalment agreement:
- The remaining principal and the accessories
- The amount and the date of each instalment
- Whether the interest will stop
- The state of the existing proceedings and attachments
- Security, a surety or a pledge
- The remaining debt becoming due in case of delay
- Closing of the file after the last payment
A plan that does not fit the debtor's real ability to pay only creates delay. A documented and applicable option should be assessed rather than a high instalment in the short term.
Jurisdiction and practical proceedings in Ankara
The creditor being in Ankara does not mean the proceedings can be opened in Ankara in every case. General jurisdiction is assessed together with rules such as the debtor's place of residence, the place of performance of the contract, and a valid jurisdiction agreement. The effect of a jurisdiction record is not the same in consumer, merchant and individual debt relations.
The volume of the enforcement offices in Ankara can affect the actual speed of the file transactions; it does not change the periods of payment and of objection. The entry of electronic applications on the file, the result of service, and the answers of the institutions should be checked regularly. If the debtor's address is not current, the service process can lengthen.
A final assessment
In an unpaid claim the healthy path is first to determine the correct party, the legal basis, the maturity and the amount. After the evidence file is prepared, the options of a written request, mediation, proceedings without a judgment, or an action are compared according to the character of the claim. The debtor's objection does not mean the claim ended; it can require the creditor to pass to the judicial path in time.
Collection cannot be guaranteed on any legal path; the debtor's assets, the strength of the evidence and the management of the procedure affect the result. For the general frame, the page on enforcement and bankruptcy law can be examined. This content is general information; the current legislation and the concrete contract should be assessed together.
How the door of collection is separated
This article separates the basis of the invoice from the notice record. This article does not write a rate of interest. This article does not write a percentage. An Ankara lawyer reads from the request for proceedings that the office being in Çankaya does not choose the competent enforcement office.
Conclusion
This article is for general information. The document, the period and the procedure of the concrete event should be read separately; there is no promise of an outcome from memory.