Provisional Attachment Decision

In order to legally ensure the payment of a money claim, the creditor must apply either to the enforcement office or to the court. The creditor applying to the enforcement office may initiate an enforcement proceeding and ask the debtor to pay the debt. The creditor also has the right to apply to the court to file a lawsuit and claim the payment of the debt. However, at the stage before the execution proceeding or the litigation process is concluded, there is always the risk that the receivable cannot be collected due to changes in the debtor’s assets. Even if the execution proceeding or the lawsuit is concluded successfully, there is a possibility that the creditor will not be able to recover his/her receivable. One of the ways to avoid such risks and to guarantee the payment of money debts is to request an provisional attachment decision from the court. Upon this request, the court temporarily confiscates the debtor’s property in order to protect the creditor’s money claim from the debtor. In this bulletin, we have discussed in detail the circumstances and time, where, how and where this legal protection, which is called the provisional attachment decision, can be requested and the effects of the provisional attachment decision.

1) Why Should a Provisional Attachment Decision Be Demanded?

There are various methods in our law to guarantee the payment of money debts. These include securing the debt with a pledge, a surety, and a letter of guarantee. Taking a provisional attachment decision is among these methods. The temporary confiscation of the debtor’s property by the court in order to guarantee the payment of the monetary debt is called a provisional attachment.

The provisional attachment decision prevents the future enforcement proceedings from being inconclusive by confiscating the debtor’s properties at the stage before the lawsuit or enforcement proceeding is concluded. In this way, if the case is won, since the debtor’s goods have already been lien, these goods will be directly converted into money and the creditor will have the opportunity to obtain their receivables. Likewise, in the event that a provisional attachment is placed on the debtor’s goods, the debtor will not be able to take actions such as smuggling by transferring these goods to others.

2) When Can A Provisional Attachment Be Requested?

The provisional attachment can be requested from the court at the following stages;

• Before the case is filed,
• Before the start of enforcement proceedings on the debt,
• After the case is filed,
• After the enforcement proceedings have been initiated,

If the lien is requested from the court before a lawsuit is filed or enforcement proceedings are initiated, it is absolutely necessary to file a lawsuit or initiate enforcement proceedings in due time after the court decides on the provisional attachment. Otherwise, the provisional attachment issued will be void.

Below are the details of this topic.

3) From Which Court Should the Provisional Attachment Be Requested?

If the provisional attachment is to be requested before the lawsuit is filed, the provisional attachment must be requested from the competent and competent court. If a provisional attachment is to be requested after the lawsuit is filed, the request must be requested from the court where the lawsuit is being heard.

4) The Necessary Conditions for Issuing a provisional attachment

In order for the court to issue a provisional attachment upon request, certain conditions must exist. These are;

A provisional attachment may be given for money receivables. The creditor must have a money receivable. Provisional attachment cannot be requested for receivables related to movable/immovable property other than money.

The receivable for which the provisional attachment is requested must not be secured by a pledge. Because in this case, there is no point in taking a provisional attachment decision. The creditor already has the right to receive the receivables as a priority by having the goods taken as pledge sold and converted into money. However, a provisional attachment may also be requested for the receivables that are only secured by a surety.

The receivable for which the provisional attachment is requested must be due. A provisional attachment may be demanded receivables that are due and, if necessary, for which a warning for payment has been made. It is also possible to request a provisional attachment for receivables that are not due yet, in the presence of certain conditions. If a provisional attachment is requested for a receivable that has not yet been paid, the following issues must be submitted to the court and proven, even if it is approximate;

• The debtor does not have a specific place of residence,
• The debtor’s preparations to hide or to smuggle his/her goods in order to avoid paying the debt,
• Escape of the debtor,
• The debtor commits fraudulent transactions that violate the creditor’s right
• It should be noted that if a provisional attachment is requested from the court regarding a receivable that is due to be paid, it is not necessary to prove that the debtor has acted in the manner listed here. The fact that the debtor has not paid her debt on time is a sufficient reason for taking a provisional attachment decision. However, if a provisional attachment is to be requested in order to guarantee the right of receivables that are not yet due, it is required that the debtor has behaviors such as fleeing, smuggling, and committing fraudulent transactions.
• In order to make a provisional attachment decision, the court asks the creditor to deposit a security. This security is taken from the creditor for the possible damages that the debtor may incur due to the seizure of her property with a precautionary lien. If the security is not paid, the court cannot decide on the provisional attachment. However, there are some situations where the creditor does not need to deposit security. If the receivable is determined by a court decision, that is, if it is based on a judgment, the creditor does not need to deposit a security. However, if it is not based on a judgment but on documents specified in the Law as a verdict, the court decides whether the creditor will deposit security.
• When requesting the provisional attachment, the existence of the grounds for the provisional attachment and the relevant evidence must be submitted to the court. Although the court will not seek a full proof, it is expected that the claim and the reasons for the provisional attachment will be proved approximately. For this reason, the documents, promissory notes and other written evidence beginning documents regarding the right to claim and other reasons requiring provisional attachment must be submitted to the court with the request. If a provisional attachment will be requested for money receivables that exceed the credit limit, which must be proved by promissory note, then it will be useful to prove the receivable with at least a piece of evidence such as a promissory note, document or contract.

5) Implementation of the Provisional Attachment Decision

The provisional attachment decision made by the court is not automatically enforced. The creditor must take action to enforce the court decision. The creditor must apply to the enforcement office within 10 days from the notification of the provisional attachment and request its implementation. If the creditor has passed the 10-day period, the provisional attachment decision will be lifted automatically. Upon the decision requested to be implemented within 10 days, the enforcement office imposes an attachment on the properties of the debtor specified in the decision.

The work is not over for the creditor and the debtor’s property by the issuance office of the provisional attachment. If the creditor has requested a provisional attachment before filing a lawsuit or carrying out enforcement proceedings, the debtor must either file a claim or initiate enforcement or bankruptcy proceedings to collect the receivable within 7 days after the provisional attachment has been placed on the property.

6) Effect and Finalization of the Provisional attachment

The creditor, who takes the provisional attachment decision, places a temporary lien on the debtor’s properties. With this lien, the creditor cannot demand that the debtor’s goods be sold and converted into money, as in normal enforcement proceedings. In order for the creditor to request the sale of the debtor’s goods, the provisional attachment must turn into a final attachment.

If the creditor initiates enforcement proceedings in due time after the provisional attachment decision is taken and the debtor does not object to this payment order, the provisional attachment turns into a final attachment. In this case, the creditor may request the sale of the debtor’s goods. Likewise, even if the debtor objects to the payment order, if this objection is lifted or canceled, the provisional attachment becomes a final lien.

If bankruptcy proceedings are made after the provisional attachment decision, when the bankruptcy case is accepted, the lien ends and the goods enter the bankruptcy table directly.

If the creditor has filed a claim for credit after the provisional attachment decision, if this case is accepted, the provisional attachment continues throughout the case. After the conclusion of the case, it is necessary to initiate enforcement proceedings with a verdict within one month from the date of notification of the acceptance decision to the creditor.

The creditor, who takes the provisional attachment decision, does not get the right to collect the receivable first. In other words, there is no such thing as a pledge. However, if the debtor’s property has been confiscated by a creditor for another debt, the creditor who has had a provisional attachment is automatically and temporarily included in this attachment.

7) Objection to the Provisional Attachment Decision

The debtor cannot appeal against the provisional attachment decision. However, if the provisional attachment decision was given without being heard by the court, it is possible for the debtor to object to this decision. The debtor can appeal the provisional attachment in the court that made the decision. The appeal must be made within 7 days. The 7-day period is from today if the debtor is present when the precautionary attachment decision is implemented; In the provisional attachment decision applied in the absence of the debtor, it is calculated from the day when the seizure report is notified to the debtor.

If the debtor is against the decision made on objection to the provisional attachment, the debtor may appeal.

Other than the debtor, third parties can also appeal the provisional attachment decision. Third parties may also appeal against the provisional attachment within a 7-day period. But here, the 7-day period starts from the date the third parties learn of the lien.

An objection to the provisional attachment decision must be made for certain reasons. It is not possible to object to the provisional attachment for any reason other than the stated reasons. The debtor may object to the security, the reasons for the attachment or the jurisdiction of the court as grounds for opposing the provisional attachment. Third parties, on the other hand, can only object to the grounds of foreclosure and security.

The creditor, on the other hand, has the right to appeal against the rejection of the provisional attachment decision.

“Considering that before the execution proceeding, an the provisional attachment decision was made against the defendant debtor with the decision of the Antalya 1st Commercial Court of First Instance no. and it was finalized against the defendant debtor, since the debtor did not object to the jurisdiction in the provisional attachment, upon the provisional attachment decision on 08/02/2016, the plaintiff creditor initiated enforcement proceedings without judgment on 10/02/2016, upon the notification of the payment order, in the face of the defendant debtor’s objection to the authority and debt within the legal seven-day period, it cannot be mentioned that the provisional attachment decision has become final and the Antalya Enforcement Directorate, to which the court that made the decision is affiliated, has become authorized, the addresses of all debtors in the enforcement proceedings are Manavgat and that the Istanbul Courts and Enforcement Offices are authorized according to the authorization condition set in the loan agreement, the powers of the general courts are not excluded; According to Article 10 of the HMK, Manavgat enforcement offices, where the defendant’s residence is located, are authorized and the Regional Commercial Court of First Instance decided to reject the appellant’s appeal application on the ground that the defendant’s objection to jurisdiction was valid, and this decision was upheld by the Supreme Court.”[1]

8) Debtor’s Claim for Compensation Due to Unjust Provisional Attachment

In paragraph 1 of article 259 of the Execution and Bankruptcy Law No. 2004; In the event that the provisional attachment is found to be unjust, the creditor is liable for all damages incurred by the debtor and third parties as a result.

In order for the creditor to be held liable with pecuniary compensation due to the unjust Provisional Attachment;

• For the debtor’s goods, a Provisional Attachment decision has been taken and this decision has been fulfilled (implemented), 
• The creditor who placed the Provisional Attachment must have been wrong,
• The debtor (or third party) must have suffered a loss due to the Provisional Attachment placed on the vgoods,
• There must be an appropriate causal link (cause-effect link) between the damage and the wrongful Provisional Attachment .

If the Provisional Attachment is unjust and material damage has arisen, the creditor is obliged to pay financial compensation to the injured person, even if sh/hee is not at fault. The following statements are included in a Supreme Court decision on compensation due to unjust provisional attachment;

“The lawsuit is about the claim for compensation for the damage suffered due to unjust provisional attachment. The court decided to accept the case partially, and the decision was appealed by the plaintiff’s attorney. The plaintiff party requested 3,000 TL for pecuniary damages, without prejudice to his rights regarding the surplus, stating that his movable properties, which were taken under protection due to unjust provisional attachment, became unusable, that he had to buy goods again, and that he had to incur transportation and porter costs, his new vehicle, which he bought 2 months before the foreclosure, was worn out during the time he was in the trustee’s warehouse, that he had to travel by taxi during this period, that he had to pay a fee to the trustee’s warehouse, that he was deprived of possible investments and gains due to the abolition of his savings authority on his real estate and the plaintiff demanded 15,000 TL for non-pecuniary damages due to the damage to his commercial reputation stating that the seizure was malicious.

It has been determined that the defendant did not have malicious intent in the proceedings, and that he was a creditor from the plaintiff with the expert reports prepared in the action for annulment of the objection; however, he defended the rejection of the case by stating that the closed invoice, which is the source of the debt relationship between the parties, was not duly recorded in the commercial books, and that the case was dismissed, and that the foreclosure proceedings did not have a negative impact on the life of the plaintiff.

The court decided to accept the claim for pecuniary damages of 3,000 TL, which was submitted by the plaintiff only regarding the parking fee of the seized vehicle and based on the price specified in the invoice, and to reject the claim for non-pecuniary damages on the grounds that the defendant did not have malicious intent, and this decision was appealed by the plaintiff. After examining the file; that more than one request has been made by the plaintiff’s attorney in terms of pecuniary damages; however, it is understood that the amount is not specified for each demand. While the court should decide according to the result by explaining what the claims of the plaintiff regarding the claim for pecuniary damage consist of first, the decision had to be overturned because it was against the law to make a decision in writing.”[2]

9)Provisional Attachment of Ships

In order to secure maritime claims, a provisional attachment decision can also be taken on ships. The following evaluations were made in the case that was the subject of the Supreme Court decision;

According to the Turkish Commercial Code, “Only provisional attachment of the ship can be decided in order to secure the maritime receivables. For these claims, it cannot be demanded to put a provisional attachment on the ship or to prevent the ship from sailing in any other way. The provision of the first paragraph shall also apply to maritime claims secured by a contractual or legal pledge.” According to the provision above, the following is applied “All ships, which are decided to be seized, are taken into custody by being prevented from sailing by the executive director, regardless of their flag and which registry they are registered in”. In that case, an attachment decision can be made only by taking a provisional attachment before the proceeding becomes final.

In the concrete case, it has been seen that the debtor’s right of lien was exercised, and that a proceeding without judgment was initiated by directly converting the movable pledge into money, that the proceedings were not finalized, and that a foreclosure report was actually drawn up by the executive directorate before the aforementioned ship without any provisional attachment decision taken within the scope of the file.

In that case, in line with the explanations given above, the court of first instance should have decided to accept the complaint regarding the seizure of the ship on the grounds that the seizure will not be made without a provisional attachment decision before the finalization, but the decision to reject the request with a written justification was incorrect and the court decision had to be reversed.”[3]

Conclusion

It serves to guarantee the outcome of the lawsuit filed or the enforcement proceeding initiated in order to obtain the right to obtain a provisional attachment decision. In this way, it is possible to temporarily confiscate the debtor’s property. However, the process must be followed closely in order to obtain the expected benefit from the provisional attachment. Because, in cases such as not demanding the timely implementation of the provisional attachment decision and not taking the necessary actions in the face of the objection, the provisional attachment will automatically be released. You can contact Solmaz Legal and Consulting team for legal questions and inquiries related to provisional attachment and receivables cases.

Best Regards.

References

KURU, Baki, İcra ve İflas Hukuku, Legal Yayınevi, 2016.

PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, İcra ve İflas Hukuku, Yetkin Yayıncılık, 2015.

4nd Civil Chamber of the Supreme Court, 2017/4920 E., 2020/3710 K.

11th Civil Chamber of the Supreme Court, 2020/2613 E., 2020/4218 K.

12nd Civil Chamber of the Supreme Court, , 2019/5510 E., 2020/5410 K.

[1] 11th Civil Chamber of the Supreme Court, 2020/2613 E., 2020/4218 K.

[2]4th Civil Chamber of the Supreme Court, 2017/4920 E., 2020/3710 K.

[3]12nd Civil Chamber of the Supreme Court, 2019/5510 E., 2020/5410 K.