What is Irregular Service of process?

What is Irregular Service of process? | Izmir Law Firm

Irregular notification, Notification Law‘This is regulated by Article 32 of the law and Article 52 of the regulation. According to the relevant provisions, even if the notification is made improperly, it will be considered valid if the recipient has become aware of the notification in any way. However, if the recipient is not aware of the improper notification at all, the notification will be considered null and void. Let's examine this in detail; 

In enforcement law, some procedures requiring notification are not considered complete unless they are properly served. Therefore, procedures whose completion depends on notification do not produce their associated consequences until they are completed. A notification process carried out without complying with the procedures specified in the relevant laws is considered an irregular notification. 

For example;

• To the unauthorized representative of the legal entity, 
• To those who are in a hostile relationship,
• To the family member who does not live together, 
• Those who appear to be under 15 years old,
• Notifications made to the principal when a representative is present,
• Irregular notification occurs when, due to impossibility of serving the notice, the notice is not posted on the door and is given to a neighbor instead of the village headman or police officer.

Notification Law According to Article 16, if the person to be served is not found at their address, the service shall be made to a person residing in the same dwelling or to one of their servants.

However, for this notification to be valid, it is necessary to ascertain that the person to be notified is not at the address at that moment and to write this on the envelope. Only «"It was served to his spouse who lives in the same residence."» It is improper to say so. (12th Civil Chamber, 22.09.2016, Case No. 2016/23356, Decision No. 2016/19462)

In the case of legal entities, however...; It must be clearly stated on the notification envelope that the representative or the clerk is not present. Simply writing "delivered to the permanent employee" without mentioning this is irregular. If the address to be served is temporarily closed and it is a trade registry address, the notification is served to the head of the village/neighborhood. If the address to be served is permanently closed, the notification is returned to the relevant authority. TK Notification is made according to Article 35.

COMPLAINT REGARDING IRREGULAR SERVICE OF PROCEDURES 

TK Article 32 – Even if the notification procedure is incorrect, it shall be deemed valid if the recipient has become aware of it. The date stated by the recipient shall be considered the date of notification.

Once we become aware of the enforcement proceedings (by submitting a power of attorney, taking action, etc.), the notification will be considered valid, and we must file a complaint with the enforcement court within 7 days from that date.

In the concluding section of our complaint, we request that the date of notification be accepted as the date of notification, and that any objections raised be accepted and the proceedings be suspended. The opposing party is identified as the debtor in the petition.

• An important point: If you wish to object to the debt along with the notification of irregular service of process, you must object to the debt within the legal time limit from the date you become aware of the notification, i.e., from the date you learn of it, without waiting for the decision of the enforcement court. In practice, failing to object to the debt while filing a complaint about irregular service of process leads to loss of rights. Therefore, it is essential to have enforcement files handled by a lawyer.

Finally, it should be noted that, as mentioned above, according to the notification law, if the debtor is aware of an irregular notification, the notification is still valid. Therefore, "“ Even if the notification is irregular, if the debtor's representative has submitted a power of attorney via UYAP (the Turkish judicial information system), the debtor's representative is deemed to have been informed on the date the power of attorney was approved by the enforcement office.” 

Relevant decision: Supreme Court 12th Civil Chamber, Case No. 2019/11629 E., Decision No. 2020/3376 K.

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