Execution Procedures (PDF)

## Procedures of Temporary Challenges to Enforcement These challenges are filed in two ways: ### a. The Usual Method - A declaration is filed with the clerk's office of the competent enforcement court. This is the court that issued the judgment or the court whose jurisdiction includes the defend...

## Procedures of Temporary Challenges to Enforcement These challenges are filed in two ways: ### a. The Usual Method - A declaration is filed with the clerk's office of the competent enforcement court. This is the court that issued the judgment or the court whose jurisdiction includes the defendant's domicile or assets. - The appearance deadline in provisional proceedings is twenty-four hours, but in case of necessity, this deadline may be reduced by one hour to one hour (subject to): - a notification being made to the other party in person - the proceedings not being a maritime case. - The reduction of the appearance deadline will be done by order upon request of the enforcement judge in their capacity as a judge. ### b. The Unusual Method - This can be submitted to the enforcement assistant, and this is the most common method in practice because it is much simpler than the usual method and is proportional to the nature of the circumstances requiring immediate filing, bringing the enforcement procedure to a halt. - The challenge is presented to the enforcement judge, and the legislator reconciles the interest of the applicant for enforcement with the interest of the person opposing enforcement. - This particular method consists of the possibility of presenting provisional challenges to enforcement before the judge when engaging in an enforcement act. ### The Necessity of Appointing a Lawyer - It is not necessary to appoint a lawyer in this regard, due to the urgency of the situation. - The issue should be resolved by the complainant or their legal representative or agent, even if they are not a lawyer. ### The Effect of Lifting a Provisional Challenge to Enforcement - Provisional enforcement issues are so urgent that they cannot wait for a judicial decision. Enforcement may take place just hours before the decision is made on them. - This is why the law stipulates that a challenge filed by the individual against whom enforcement has been executed, or by a third party, results in the suspension of enforcement by law. - Enforcement stops following the temporary filing of the action, whether the action is filed before the enforcement assistant during enforcement or submitted directly to the enforcement judge, and this effect occurs even if the action is filed before an incompetent court, as this effect persists with the suspension of enforcement. - With regards to the judgment of incompetence and jurisdictional error, this does not result in the end of the challenge and does not diminish its validity, but rather refers the case to the court that must examine it from the place where its procedures ended before the court that referred it, and the procedures completed before it are considered valid. - This means that enforcement remains suspended in case of a decision of incompetence to be examined. - However, there is one exception to the effect of suspending enforcement by submitting the first challenge to enforcement. ### Special Cases of Challenging Enforcement - The (first) challenge of enforcements related to spousal maintenance, divorce, child maintenance, parent or family maintenance does not result in the termination of the enforcement procedure. - Consideration should be given to the situation of the person entitled to maintenance and their needs. ### Distinguishing between the First Challenge of Enforcement and Proceeding Challenges - The suspension of enforcement through the force of law is brought about by the first challenge during the enforcement procedures. - As long as the issue has been resolved, the enforcement assistant must halt enforcement, and if the assistant takes further measures (for example, completing the seizure if there is fear that the money to be seized has been smuggled), this is only precautionary. - This is what the legislator meant: "The bailiff carries out a precautionary seizure. He does not carry out any enforcement operation, but rather takes a temporary precautionary measure" until the judge rules on it. - The second challenge does not entail the suspension of enforcement through the force of the law, but the judge may decide on its suspension if they deem it appropriate to the circumstances of the suit. ### Special Provisions for the Cancellation of the Challenge of Enforcement - The legislature has established a special provision in the case of canceling the challenge of enforcement. - If the judge decides to cancel the challenge, the suspension effect of enforcement brought about by their cancellation ceases. - Although the enforcement judge applies the general rules of presence and absence to challenges of enforcement for urgent procedures (referrals) - meaning that if all parties are absent and the notification of the defendant is correct, the judge rules on the challenge if they are able to rule on it, otherwise they decide to cancel it. ### Ruling on a Provisional Challenge to Enforcement - The enforcement judge rules on provisional challenges to enforcement in their capacity as the referral judge, therefore their authority is the same as that of the referral judge in accordance with the general rules. - They issue a provisional decision to either halt enforcement or continue it, and base this decision on the appearance of the documents without being exposed to the grounds and without resolving the issue of the challenge.