Objection to the Provisional Attachment

The provisional attachment decision is a type of temporary legal protection aimed at ensuring that the creditor regains the receivables. When a provisional attachment  decision is made, the debtor’s property is temporarily confiscated. The court may decide on the provisional attachment upon the request of the creditor. The court may listen to the debtor party while deciding on the provisional attachment, or it may decide on it without hearing the debtor. In practice, a provisional attachment decision is usually made without hearing the debtor party. Here, if the court decides to hear the debtor, a provisional attachment decision is made without hearing the debtor, since it may be possible for the debtor to smuggle his property and leave the enforcement proceedings or the case unsuccessful before the provisional attachment decision is made. This practice, which produces results in favor of the creditor in terms of eliminating these inconveniences, on the other hand, may cause unjust results for the debtor. For example; The court may have given a provisional attachment order against the debtor while the conditions of the provisional attachment have not actually been met, or the court may have given the provisional attachment even though it has no jurisdiction. In order to eliminate such inconveniences, the debtor was given the opportunity to object to the provisional attachment decision. The debtor may object to the provisional attachment within the time limit and obtain its removal

In this bulletin, we focused on the conditions, reasons and results of the objection to the provisional attachment decision.

1. Conditions of Appeal for Provisional Attachment

The first condition for the debtor to be able to object to the provisional attachment is that the provisional attachment decision has been given without the debtor being heard. If the provisional attachment decision was given by listening to the debtor party, it is not possible for the debtor to object to this decision. According to article 265 of the EBL;

“The debtor is against the reasons on which the provisional attachment given without being heard, the jurisdiction of the court and the security; The application of the lien in the lien made in his/her presence, otherwise he/she can object by applying to the court within seven days from the date of notification of the provisional attachment report.”

Objection to the injunction can only be made based on the limited reasons listed in the text of the article. Apart from these, it is not possible to object for other reasons. According to this, an objection to the provisional attachment can be made regarding the reasons on which the provisional attachment is based, can be made with the allegation that a provisional attachment decision has been made by an unauthorized court, or an objection can be made about the security.

Apart from the debtor, third parties whose interests are affected by the lien may also object to the provisional attachment. However, their objections cannot be related to the jurisdiction of the court. They can only object to the reasons on which the provisional attachment is based and the security.

The debtor has to attach all the documents on which her /his objection is based, to the petition of objection.

2. Duration for the Objection to the Provisional Attachment

The provisional attachment must be made within the 7-day foreclosure period. The beginning of the period is calculated by accepting the date on which the attachment is applied for the provisional attachment where the debtor is present, and the date on which the lien report is notified to the debtor for the lien in case the debtor is not present. The judge is obliged to automatically investigate and take into account whether the objection to the provisional attachment was made in due time.

3. Competent Court for the Objection to Provisional Attachment

An objection to the provisional attachment decision must be made to the court that ordered the provisional attachment. The examination must also be carried out by the same court and with a hearing. The following points have been emphasized in the decisions of the Supreme Court;

İzmir 1st Commercial Court of First Instance, pursuant to article 264 of the EBL rules that Unless a lawsuit has been filed regarding the receivable that is the subject of the provisional attachment, the objection to the provisional attachment decision will be made to the court that has rendered the provisional attachment decision in accordance with the provisions of Article 265 of the EBL, it will be decided by the court within the scope of article 265 of the EBL, and in the concrete case, it was decided to accept the objection with the file numbered  2015/204 of the 2nd Civil Court of First Instance in ……, which gave the provisional attachment decision, and that decision of non-jurisdiction cannot be given on the grounds that the court examining the objection could not issue a decision of lack of jurisdiction and that the court in charge to decide on the annulment or amendment of the provisional attachment decision regarding the objection  Was the 2nd Civil Court of First Instance in ……

The court accepts or rejects the objection by examining the reasons given.
In the concrete case, the debtor ….trade.co.ltd.’s attorney  objected to the jurisdiction of the court, and in this case, the court that will accept or reject the objection by examining the reasons given in this case is the  2nd Civil Court of First Instance in ….. that will decide upon the provisional attachment .’‘ [1]

In another decision, the Court of Cassation drew attention to the necessity of a hearing examination;

“The request is about an objection to the provisional attachment decision. Pursuant to article 265/final of the EBL, while the court should invite both parties upon the objection and listen to those who come, if both parties do not come, it should examine the objection by examining the documents, and if it finds the objection to be valid, it should change its decision or cancel it, otherwise, it should reject the objection, it was not right to proceed to the examination directly on the documents without inviting both parties.”[2]

“The article 265/1 of the EBL, against the grounds on which the provisional attachment granted without hearing the debtor is based, the jurisdiction of the court and the security, rules that he/she can object directly when the attachment execution made in her/his presence, otherwise, she/he can object by applying to the court within seven days from the date of notification of the attachment report; and in article 265/3 and paragraph rules that the court will accept or reject the objection by examining the reasons given.

The previous decision given by the court was reversed with the decision of our Chamber dated 15/04/2015 and numbered 2014 18576 E-2015/5325 K., stating that the request was related to the request for the annulment of the provisional attachment decision, since the objection should be decided by opening a hearing, not over documents, and in the retrial held in accordance with the annulment order, while it was necessary to make a positive or negative decision regarding the objection to the provisional attachment decision, contrary to both the annulment decision of our Chamber and the article 265/3 of the EBL, it was not considered correct to issue the provisional attachment decision again, therefore the decision had to be reversed.[3]

4. Reasons for the Objection to the Provisional Attachment

The reasons for the objection to the provisional attachment are listed in the Law in a limited way. The reasons for objection, which are classified into three groups in EBL article 265, are stated as objections related to the grounds on which the provisional attachment is based, the jurisdiction of the court and the security. However, in practice, there are hesitations about what the objections might be, especially regarding the grounds on which the “ provisional attachment  is based. Here, we will try to clarify this issue based only on the Supreme Court decisions. In particular, it is debatable whether the objections regarding the non-existence and payment of the receivable can be counted within this scope. Because, if there is no receivable, the existence of the provisional attachment will become meaningless. Below are examples of which reasons are considered valid as grounds for objection to the provisional attachment in the decisions of the Supreme Court;

In the following decision, the objection of the invoices on which the precautionary attachment was based was accepted as a valid reason for objection to the provisional attachment and it was decided to abolish the provisional attachment;

“The attorney requesting provisional attachment has requested a lien on the basis of 14 invoices, and the court has given a provisional attachment decision, considering the request appropriate. The attorney, who objected to the provisional attachment, stated that the invoices on which the provisional attachment was based were objected to with the warning letters sent from the notary public and demanded the annulment of the provisional attachment.

The court stated that the person requesting the provisional attachment did not submit to the file the warnings sent by the debtor to the invoices and debt through the notary public while making a request, that if these documents and information are known to the court, they will not be satisfied with the existence of the claim, and the situation that prevents the formation of an opinion about the existence of the claim is understood upon objection and that decided that the provisional attachment is annulled, and to uphold the decision.” [4]

In another decision, it was stated that an objection to the signature on the check could not be accepted as a reason for objection to the provisional attachment, and this could only be brought forward in a negative declaratory action;

“The debtor’s attorney, who objected to the lien, demanded the annulment of the provisional attachment, claiming that the signature on the check based on the lien did not belong to the authorized person of the client company, and since the signature of the drawee on the check did not match with the signatures of the company official in the bank, no action was taken and there had been falsification on the drawing date, that it was not correct to take a precautionary lien while the existence of the receivable was doubtful, and that the underlying document did not have the qualification of a bill of exchange,

The case concerns the objection to the provisional attachment. The reasons for the objection to the provisional attachment are shown in Article 265 of the EBL, And the issue put forward in the concrete dispute is not the reasons stated in the aforementioned article. The reasons put forward are among the issues that can only be put forward in a negative declaratory actions. Considering that there may be other representatives of the plaintiff company by the court, the issue claimed as the reason for the objection to the provisional attachment requires a comprehensive examination, it cannot be examined in such a case, and it is not possible to decide on the acceptance of the request according to the determination made by the non-litigation bank officers, which does not qualify as evidence before the courts, while the objection to the provisional attachment should have been decided to be rejected, the aforementioned concerns were overlooked and it was necessary to reverse a judgment in writing.”[5]

Contrary to the previous decision, in the following Supreme Court decision, it was decided that the issue of representation with double signature should be accepted as a reason for objection to the provisional attachment and that the court should come to a conclusion by examining the signature circular;

“Considering that the grounds for objection to the provisional attachment are limited and of a formal nature, and although no objection can be made to the provisional attachment decision based on reasons other than these, considering that the objection that the check will not bind the company due to the fact that the check is single-signed, is an objection within the scope of the grounds on which the provisional attachment is based,  while the objection of the company against which a provisional attachment decision was made by the court in line with both Article 321/3 of the TCC and the signature circular submitted at the objection stage, should be evaluated, the court’s reasoning stating that this issue would be taken into account in the actual proceedings was not appropriate, therefore the decision had to be reversed.”[6]

The request for the removal of the provisional attachment was rejected on the grounds that the objection to the payment of the check value was not one of the grounds for objection to the provisional attachment listed in the law. The following determination was made in the said decision;

“In the concrete case, the person objecting to the provisional attachment asked for the annulment of the attachment, claiming that the debt was paid and there was no intention of smuggling, and the court decided to accept the request with written justifications. However, the objection that the check value was paid is not one of the reasons for objection listed in the law, but a claim that can constitute the subject of the negative declaratory action.”[7]

In yet another decision, objections to the signature on the check and that the check was disposed of without consent were not seen within the scope the Article 265 of the EBL.[8]

The fact that the receivable subject to the provisional attachment is secured by a pledge is one of the grounds for objection to the provisional attachment. Because, the provisional attachment can only be in question for the receivables that are not secured by pledge.

The point to be considered in all these objections regarding the existence of the receivable is as follows; The provisional attachment decision is a decision made by the creditor at the approximate proof office. Here, the court has not yet made a judgment on the existence or non-existence of a receivable and has not reached a definite conclusion. In the same way, it can be said that by limiting the grounds for objection to the provisional attachment, it is aimed to prevent this application from turning into a judgment that requires an examination on the basis of the principal debt relationship. This is the reason why the issues that require examination, especially the solution of which will be made in another lawsuit, are not accepted as grounds for objection to the provisional attachment.

It is also possible to object to the provisional attachment on the grounds that the court that decided the provisional attachment is not competent.

Since the provisional attachment decision must be given in return for the security to be shown by the creditor, the creditor may also object to the provisional attachment in cases where the creditor has not provided any security while taking the provisional attachment decision or the security provided is insufficient. The court may also decide to provide security or to change the security in terms of amount or type, depending on the situation.

5. Can the Decision on Objection to Provisional Attachment Be Appealed?

If the court considers the objection to the provisional attachment appropriate, it may accept the objection and appeal or revoke the provisional attachment decision.  If it is decided to accept the objection to the provisional attachment decision, the provisional attachments placed on the debtor’s properties shall be lifted. If the court does not find the objection to the provisional attachment appropriate, it decides to reject the objection and to continue the provisional attachment.

In the first part of the eighth part of the CCP titled “Legal Remedies”, remedy for “appeal” is regulated, and the paragraph (1) of Article 41 of the CCP, it includes the provision that “In case of rejection of the final decisions given by the courts of first instance, and interim injunction and provisional attachment requests and if these requests are accepted, an appeal can be made against the decisions to be made upon objection”.[9]

While the creditor may apply to appeal against the decision to accept the objection to the provisional attachment, the debtor may appeal against the decision to reject the objection. The decision to be made by the Regional Court of Justice upon the application of appeal is final, and no appeal can be made against this decision at the Supreme Court.

Conclusion

Against the provisional attachment decision, it can be ensured that the provisional attachment placed on the debtor’s properties can be lifted by appealing to the court that issued the decision. This objection must be made within the 7-day period of disqualification, and objections made after this period will be rejected. Since the reasons for objection to the injunction are limited, it is recommended to seek expert opinion before making an objection.

Best Regards.

Solmaz Law and Consultancy Team.

References

KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, s. 343.

DEYNEKLİ, Adnan/SALDIRIM, Mustafa, (2011), Öğretide ve Uygulamada İhtiyati Haciz, Turhan Kitabevi, 99-127, 529-559.

20th Civil Chamber of the Supreme Court, 2016/14438 E., 2017/524 K.

11th Civil Chamber of the Supreme Court, 2008/13846 E, 2009/52 K.

11th Civil Chamber of the Supreme Court, 2016/9342 E, 2016/8222 K.

19th Civil Chamber of the Supreme Court 29.09.2010, 2010/6817 E, 2010/10455 K.

11th Civil Chamber of the Supreme Court, 03.05.2010, 2010/4314 E, 2010/4866 K.

11th Civil Chamber of the Supreme Court, 10.03.2008, 2008/2289 E, 2008/2938 K.

11th Civil Chamber of the Supreme Court, 26.02.2009, 2008/3081, 2009/2240.

11th Civil Chamber of the Supreme Court, 2008/3612 E, 2008/4190 K.

20th Civil Chamber of the Supreme Court, 2020/1512 E.  2020/2118 K.

[1]20th Civil Chamber of the Supreme Court, 2016/14438 E., 2017/524 K.

[2] 11th Civil Chamber of the Supreme Court, 2008/13846 E, 2009/52 K.

[3]11th Civil Chamber of the Supreme Court, 2016/9342 E, 2016/8222 K.

[4] 19th Civil Chamber of the Supreme Court 29.09.2010, 2010/6817 E, 2010/10455 K.

[5] 11th Civil Chamber of the Supreme Court, 03.05.2010, 2010/4314 E, 2010/4866 K.

[6] 11th Civil Chamber of the Supreme Court, 10.03.2008, 2008/2289 E, 2008/2938 K.

[7] 11th Civil Chamber of the Supreme Court, 26.02.2009, 2008/3081, 2009/2240.

[8]11th Civil Chamber of the Supreme Court, 2008/3612 E, 2008/4190 K.

[9]20th Civil Chamber of the Supreme Court, 2020/1512 E.  2020/2118 K.