Release of the Provisional Attachment in return for a Security

A provisional attachment is the prior seizure of the debtor’s property by court order in order to ensure that the debtor pays the debt to the creditor on time. As a rule, the provisional attachment can be requested for the receivables that are due. For undue receivables, it is possible to place a provisional attachment on the debtor’s goods, only if the debtor has made transactions for the purpose of escaping or smuggling, or if the debtor does not have a certain place of residence. The creditor may request a provisional attachment  by revealing that a receivable that is not secured by a pledge and is due has not been paid. It should show that the debtor who will request attachment for the undue receivable does not have a place of residence or that the debtor has acted with the aim of escaping or smuggling goods. If all these facts are proved approximately, if not completely, the judge will decide on the provisional attachment of the debtor’s properties. What needs to be understood from approximate proof here is not to prove a fact completely and definitively, but to prove that it is probable that the said event or facts have occurred. For an approximate proof to be accepted, the probability that the event or facts occurred must outweigh the probability that they did not occur.

If the creditor’s “high probability” level of proof is considered sufficient to place a provisional attachment n the debtor’s properties, it may cause the debtor’s grievance. In order to establish the balance between the debtor and the creditor, the legislator has given the debtor the opportunity to remove the provisional attachment on the goods by objecting to the lien or by showing security. Objection to the lien is made in the form of an objection to the reasons on which the lien is based, the security and the authority of the court in the lien decisions made upon the request of the creditor without hearing the debtor. This matter is regulated in Article 265 of the Enforcement and Bankruptcy Law. In this bulletin, our subject is Article 266 of the Enforcement and Bankruptcy Law, which provides the debtor with the opportunity to release the provisional attachment on the properties by showing a guarantee. Below are explanations about the conditions and consequences of the release of the provisional attachment by providing security.

1. Conditions to Release of the Provisional Attachment in return for a Security

In Article 266 of the Enforcement and Bankruptcy Law, it is stated that “The debtor may request the court to release the provisional attachment, provided that he deposits money or pledges or bonds to be accepted by the court, or shows an immovable pledge or a valid bank guarantee”. With this article, the debtor is given the opportunity to remove the precautionary lien placed on the goods, if she/he shows a valid and sufficient security.

In order for the lien to be released in return farkımı belletiyorum., the following conditions are sought to be met

• The debtor must request the removal of the provisional attachment on her goods from the competent court.
• The borrower must present a valid security such as money or a court-acceptable pledge, real estate lien (such as a mortgage), bill of exchange, bond or bank letter of guarantee.
• The debtor must provide sufficient security to meet the debt specified in the provisional attachment decision.

It is at the discretion of the court to decide whether the security is valid or not. Regarding the amount of the security, the Supreme Court made the following determination in a decision;

“It has been understood that the court ruled that the complaint was rejected on the grounds that the decision of the directorate was appropriate, since a provisional attachment decision was taken before the proceeding became final and a letter of security amounting to TL 78.413.00, which is the debt amount specified in the provisional attachment decision, was deposited as security, that the creditor has initiated a proceeding against the debtor by attachment peculiar to ordinary rent and usufructuary leases, and the creditor has requested the annulment of this transaction by claiming that the decision of the directorate to release the provisional attachment made by the debtor to the enforcement office in the application to the enforcement court is unlawful; and upon the creditor’s appeal, the Regional Court of Justice decided to annul the decision of the enforcement office upon the acceptance of the appeal request, stating that the provisional attachment could not be lifted since the debt subject to the proceedings was not fully paid and only the proceeding amount was deposited.

The complaint is the release of the provisional attachment in return for security pursuant to Article 266 of the EBL. After starting the proceedings, the authority to decide on this issue passes to the enforcement court.
In the concrete case, It has been seen that a provisional attachment decision was taken on 09.01.2018, with the file numbered ……. of the 9th Civil Court of Peace in …….., over 78,413.32 TL,  Without initiating a proceeding by the creditor. And that 81,045.00 TL, which will cover the total debt amount under proceeding, 81,041.78 TL, has been deposited as cash security  by the debtor before the proceeding is finalized.

In that case, the decision to reject the complaint given by the court of first instance is appropriate, and while it is sufficient to obtain security equal to the amount of the debt specified in the provisional attachment order in order to remove the provisional attachments in accordance with Article 266 of the EBL, The reasoning of the Regional Court of Justice that it is possible to release the provisional attachment if the payment is made over the amount reached by the file debt as of the date of the complaint is inaccurate. While the Regional Court of Justice should have decided to reject the creditor’s appeal on the merits, the decision to accept it was not appropriate and the decision had to be reversed.[1]

As it can be understood, it is sufficient for the debtor to provide a security in the amount to cover the debt, and it is not necessary to show a guarantee more than this amount.

2. Difference between Provisions of Objection to Provisional Attachment and Release of  Provisional Attachment in return for Collateral

An objection to the provisional attachment is a request for the release of the provisional attachment on the ground that there is an illegality in the provisional attachment due to certain and limited reasons specified in the Law. Here, it is requested from the court to remove the provisional attachment due to the invalidity of the grounds on which the provisional attachment is based, the conditions of the provisional attachment not being fulfilled in the concrete case, the incompetence of the court that made the decision, the absence of any security provided for the provisional attachment or the insufficient security provided. In the event that the provisional attachment is released in return for security, the court is requested to release the precautionary lien on the goods by providing a sufficient amount of collateral to cover the debt, without the need to show such reasons. Both institutions differ in their results. In the event that the provisional attachment is released against security, only tprovisional attachment on the goods is lifted, but the lien on the pledged collateral continues. By emphasizing the difference between article 265 and article 266 of the EBL in the decisions of the Supreme Court, the following provision was established;

“The request relates to the request for the annulment of the provisional attachment decision by way of objection. Pursuant to Article 265 of the Enforcement and Bankruptcy Law, the debtor, for whom a provisional attachment decision has been made without being heard, may object to the grounds on which the provisional attachment is based, the jurisdiction of the court and the court that issued the decision against the security. In this case, there is no difference between making the objection before or after the provisional attachment decision is followed. Article 266 of the Enforcement and Bankruptcy Law regulates the annulment of the precautionary provisional attachment by the court or enforcement investigation authority if the debtor provides security in proportion to the value of the seized goods. In this case, the provisional attachment  on the goods is completely released and the security shown instead is deemed to be provisional attachment. Although the debtor did not request the release of the provisional attachment in return for the security shown by the court, it was not considered correct to apply the Article 266 instead of Article 265 of the Enforcement and Bankruptcy Law and to issue a written decision of non-jurisdiction even though the debtor was responsible for examining the objection.[2]

3. Competent Court for Rlease of Provisional Attachment in return for Security

The debtor must request the release of the provisional attachment in return for security from the court that issued the provisional attachment decision at the stage before the enforcement proceedings are initiated. At the next stage after the enforcement proceedings are initiated, a provisional attachment in return for a letterl should be requested from the enforcement court.In Article 266 of the EBL, this situation is clearly expressed as follows; Borrower, …. may ask the court to release the provisional attachment. After starting the proceedings, this authority passes to the enforcement court.”

If a lawsuit has been filed after the provisional attachment decision has been made, the request for the release of the provisional attachment decision against collateral must be requested from the court that hears the case.

The following decisions of the Supreme Court are instructive for the competent and competent court for the removal of the provisional attachment in return for security.

“It is seen that the complainant has applied to the enforcement court in return for the release of the provisional attachment with or without security, claiming that the condition of action is missing in the action for the annulment of the disposition in which the provisional attachment decision was made, and that the Court of First Instance decided to reject the request on the ground that the complaint was related to the merits of the provisional attachment decision, the enforcement court could not evaluate the merits of the provisional attachment, and the appeal of the debtor was rejected on the merits by the Regional Court of Appeals.

In the concrete case, With the file numbered …..E. of the 11 Enforcement Directorates, it has been understood that the main proceedings have been started against the debtors who are out of action. With the interim decision given from the file numbered …… of the 1st Civil Court of First Instance in ……., where the action for the annulment of the disposition was heard, it was decided to place an provisional attachment on the movable and immovable properties registered in their names, as well as the rights and receivables of third parties, from the perspective of the debtor and the complainant, it has been understood from the proceeding file numbered …………E of the 11th Enforcement Directorate of ………… that the provisional ttachment decision was decided to be fulfilled by the Enforcement Directorates, and the actual proceedings were initiated against the complainant as the debtor of the provisional attachment upon the request of the creditor. It has been understood from the proceeding file numbered  …………. of the Enforcement Directorate that the provisional attachment has been applied.

In Article 266 of the EBL; Pursuant to the provision “After the proceeding begins, this authority passes to the enforcement court”, the request for the release of the provisional attachments in return for security must be evaluated by the enforcement court, since the provisional attachment decision about the complainant, who is the defendant of the action for release of the disposition, is applied in the execution file in which the actual proceedings were initiated.”[3]

In another decision, the following determinations were made;

“It is seen that the debtor has applied to the enforcement court for the removal of the provisional attachment in return for security pursuant to Article 266 of the EBL, that the seizure is made with the provisional attachment decision in the proceedings subject to the complaint, the proceedings are not finalized, and the enforcement court is not authorized in the proceedings that are not finalized, and that the case was dismissed on the grounds that the removal of the provisional attachment can be requested from the court that decided the attachment, and the enforcement court cannot evaluate it unless the main proceedings are initiated.

Article 266 of the EBL envisages that “The debtor may request from the court the release of the provisional attachment, on condition that he/she deposits money or pledges or bonds to be accepted by the court, or presents an immovable pledge or a valid bank surety. After starting the proceedings, this authority passes to the enforcement court.”

In the concrete case, it was understood that the main proceeding was started with the file number 125 of A……………… Court on 23.10.2015.

In Article 266 of the EBL; It has been understood that the complaint is within the scope of the enforcement court, since the proceedings have been initiated pursuant to the provision “…after the prosecution begins, this authority passes to the enforcement court”, the rejection of the complaint was not considered correct, since the authority regarding the release of the provisional attachment in the unfinished proceeding is in the commercial court of first instance, which decided on the lien.”[4]

4. Consequence of Release of the Provisional attachment in return for a Collateral

In the event that the precautionary lien is released in return for the lien on the provisional attachment is completely lifted. Instead, the security shown is deemed to have been precautionaryly attached. As can be seen, the provisional attachment does not disappear completely, only its subject changes.

Conclusion

The debtor may request from the court the release of the provisional attachment  on her/his goods by providing sufficient security to meet her debt. In this way, the liens on the provisionally attached goods are completely lifted. Directing the request to the right court, showing valid and sufficient security are important issues in order to release the provisional attachment. Seeking the advice of an expert lawyer before taking action on this issue will contribute to a healthier path and the successful conclusion of the process.

Best Regards.

Solmaz Law and Consultancy Team.

References

DEYNEKLİ, Adnan/SALDIRIM, Mustafa, (2011), Öğretide ve Uygulamada İhtiyati Haciz, Turhan Kitabevi, s.125-128.

12nd Civil Chamber of the Supreme Court, 2019/9636 E., 2020/3248 K.

11th Civil Chamber of the Supreme Court, 31.01.2002, 2001/8234 E, 2002/968 K.

12nd Civil Chamber of the Supreme Court, 2020/2273 E., 2020/9753 K.

12nd Civil Chamber of the Supreme Court, 2018/5788 E., 2019/2953 K.

[1]12nd Civil Chamber of the Supreme Court, 2019/9636 E., 2020/3248 K.

[2] 11th Civil Chamber of the Supreme Court, 31.01.2002, 2001/8234 E, 2002/968 K.

[3]12nd Civil Chamber of the Supreme Court, 2020/2273 E., 2020/9753 K.

[4]12nd Civil Chamber of the Supreme Court, 2018/5788 E., 2019/2953 K.