Special Case of Provisional Attachment Requests to which Factoring Companies are Parties

A provisional attachment is the temporary seizure of the debtor’s property in order to secure the creditor’s receivables. In order to claim a provisional attachment, it is sufficient to have a receivable belonging to the creditor that has not been secured by a pledge and has not been paid yet. It is only possible to request a provisional attachment request for the undue receivables in cases where the debtor may smuggle or run away. The creditor requesting the provisional attachment must convince the court at the approximate level of proof in these matters. The creditor must present the reasons and documents that require the provisional attachment, together with the request. In this case, the court will rule the provisional attachment of the debtor’s properties, if there are conditions.

If the creditor is a factoring company, certain conditions are sought in addition to these, for the provisional attachment to be requested. In this bulletin, we have mentioned the conditions required for the acceptance of provisional attachment requests by factoring companies.

1. Required Conditions for Factoring Companies to Take a Provisional Attachment Decision

In order for the factoring company to accept the provisional attachment request, it must prove that its receivable arises from the sale of a good or service. To put it more clearly, a factoring company cannot request a provisional attachment based on the receivable not arising from the sale of goods or services. It is possible for the factoring company to prove the sale of a good or service with documents such as invoices or waybills.

Pursuant to Article 22/2 of the Regulation on the Establishment and Operating Principles of Financial Leasing, Factoring and Financing Companies, Even if factoring companies are based on a bill of exchange, they cannot undertake the collection of these receivables or purchase them, unless they are documented with an invoice or similar documents, arising or to arise from the sale of a good or service. In other words, it is not possible for factoring companies to take a provisional attachment on the basis of the bill of exchange only. This receivable must be proven with invoices and similar documents. However, if the sale of goods or services is proven by submitting an invoice related to the receivable for the provisional attachment, the factoring company is not expected to submit the documents regarding the delivery note or the delivery of the goods. The following is the decision of the Supreme Court on the issue;

“The attorney requesting the attachment has requested a provisional attachment against the drawers and endorsers, based on the check and the invoice pertaining to the basic relationship on which the check is based. In accordance with Article 22/2 of the Regulation on the Establishment and Operating Principles of Financial Leasing, Factoring and Financing Companies published in the Official Gazette dated 10/10/2006 and numbered 26315, pursuant to the provision saying that “In addition to the matters stated in the first paragraph, factoring companies cannot purchase or undertake the collection of receivables that have not been documented with invoices or similar documents, even if they are based on bills of exchange,” It was decided to reject the request for provisional attachment since it is necessary to present the invoice or delivery note and the determination of whether the goods have been delivered or not requires a trial. The attorney, who requested the provisional attachment, appealed the decision. In the face of the fact that an invoice regarding the PVC sold to the drawer by the beneficiary of the check was submitted together with the check, in the annex of the attachment request, the court’s provision of the aforementioned regulation was misinterpreted and the rejection of the attachment request on the grounds that whether the goods were delivered requires a trial is against the procedure and the law.[1]

Supreme Court decision stating that the provisional attachment on the request of the check’s issuer and beneficiary should be lifted, since the factoring company is not authorized and legitimate drawer for a check that has not been taken over with a valid factoring transaction;

“The request of the attorney of … Inc.Co, who requested the provisional attachment,  was accepted, and a provisional attachment decision was made for the foreign exchange debtors included in the check subject to the provisional attachment, and the objection was partially accepted by the court and the provisional attachment was released in terms of 13.200 TL, excluding the invoice receivable amounting to 11,800 TL, which was assigned by the factoring company, and it was decided to reject the request for the surplus, and the attorney of those who objected to the decision and the attorney of the creditor factoring company appealed separately.

According to article 8/1 of the “Regulation on the Procedures and Principles to be Applied in Transactions of …”, which was enacted on the basis of the Financial Leasing and …. Financing Companies Law No. 6361 and published in the Official Gazette No. 29257 on February 4, 2015. ” In case of receipt of bills of exchange or other bills based on the invoiced receivable, the person who endorses and gives the bill of exchange or other bills to the organization in the endorsement sequence in the bill of exchange or other promissory note must be the person who appears as the creditor on the taken over invoice, and the endorser or the drawer before this person must be the same person as the debtor on the invoice.”
In the concrete case, there is no factoring contract between the factoring company and the endorser of the check to the factoring company, and it is clear from the file content that the endorser is not the person who appears as the creditor on the received invoice. In this case, since it is not possible to talk about a factoring transaction carried out in accordance with Article 9/2 of the Law No. 6361 and Article 8/1 of the said Regulation, it cannot be accepted  That … Co. Inc. is the authorized and legitimate holder of the disputed check. As such, the court should completely accept the objections of those who object and decide to release the provisional attachment for those who object, but it was not considered correct to make a written decision on erroneous grounds.” [2]

Authority in the Requests for a Provisional Attachment

If the provisional attachment is to be requested before the lawsuit, it must be requested from the competent court. At the next stage after the action is filed, the provisional attachment requests should be directed to the court that hears the case. The decision of the Supreme Court regarding the provisional attachment to be requested by factoring companies regarding their receivables based on bills of exchange is as follows;

The Supreme Court’s decision stating that the creditor of the bill of exchange can only request a provisional attachment at the domicile of one of the debtors, at the place of payment, at the place of issue of the check, if there is more than one debtor at the domicile of the debtor;

“The attorney of the (debtor) person objecting to the attachment requested  the annulment of the provisional attachment claiming that there is no commercial relationship between the other party and the client, that there is an injunction on the check…Anadolu 19th Civil Court of Peace’s file numbered 2015/143, however, despite the fact that the factoring company knows that there is an injunction and a decision to bar the checks from being presented to the bank in bad faith, and the address of the drawer client is Pendik/Istanbul, and the bank branch where the checks are issued is in Kartal/Istanbul and all parties in the file are on the Anatolian Side, but demanding a provisional attachment, and the court has no jurisdiction, that the competent court is the Anatolian Commercial Courts of First Instance.

The opposing party (creditor) attorney requested the withdrawal of appeal.

The Court has decided that according to the scope of the claim, defense and file, the receivables arising from the bills of exchange are in the nature of receivables to be sought, the provision numbered 6098 of Article 89/1 of the TLO shall not be applied for the receivables, the creditor of the bill of exchange cannot request a provisional attachment in his/her own place of residence because of the receivables pertaining to the bill of exchange,however, if there is more than one debtor at the debtor’s domicile, one of the debtors may request a provisional attachment at the domicile, check issuance, payment place,  ….as per the address of the addressee bank and the objector, with the reference of Article 50 of the ELB and Article 6 of the CCP, and with the acceptance of the objection on the grounds that the Anatolian Courts are competent, the annulment of the provisional attachment on the part of the objector and the court’s lack of jurisdiction, when the decision becomes final and upon request within the legal period, it has been decided to send the file to the competent ….Anatolian Commercial Court of First Instance. The court decision was considered appropriate and upheld by the Supreme Court.”[3]

Conclusion

There are certain conditions required by the courts in order for the request to be accepted in the provisional attachments that factoring companies may request. This bulletin has focused on these issues in general, and we respectfully remind you that you can contact our team for detailed information.

Solmaz Law and Consultancy Team.

References

KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, p. 341.

DEYNEKLİ, Adnan/SALDIRIM, Mustafa, (2011), Öğretide ve Uygulamada İhtiyati Haciz, Turhan Kitabevi, p. 851-859.

19th Civil Chamber of the Supreme Court 2009/894 E, 2009/1989 K.

19th Civil Chamber of the Supreme Court 2016/12134 E, 2016/16230 K.

11th Civil Chamber of the Supreme Court, 2017/175 E, 2017/578 K.

[1] 19th Civil Chamber of the Supreme Court 2009/894 E, 2009/1989 K.

[2] 19th Civil Chamber of the Supreme Court 2016/12134 E, 2016/16230 K.

[3]11th Civil Chamber of the Supreme Court, 2017/175 E, 2017/578 K.