What is Provisional Attachment? In Turkey, provisional attachment is the temporary seizure of the debtor’s assets by court order in order to secure the creditor’s receivables in the event that the debtor fails to pay his debt. Provisional attachment is a precaution taken against the possibility of the debtor’s property being stolen and provides the creditor with the opportunity to protect the debtor’s assets before the final attachment procedures are completed.
Provisional Attachment Request
- The creditor applies to the competent court with a request for provisional attachment for monetary receivables.
- The amount of the receivable and the reasons for requesting provisional attachment must be stated in detail in the request petition.
- The creditor must present evidence supporting the existence of the receivable and the necessity of provisional attachment. This evidence may include documents such as contracts, invoices, promissory notes.
Court Decision
- The court examines the creditor’s request and the evidence presented.
- In order for a provisional attachment decision to be made, the creditor’s receivable must be due and final. In addition, there must be situations where the creditor’s ability to obtain his receivables is in danger.
Security in Provisional Seizure:
When making a provisional seizure decision, the court may request the creditor to provide collateral. The issue of collateral in provisional seizure is regulated in Article 259 of our Enforcement and Bankruptcy Law. According to the relevant article:
- “If the creditor requesting provisional seizure is found to be wrong in the seizure, he is liable for all damages that the debtor and third parties will suffer and is obliged to provide the collateral specified in Article 96 of the Code of Civil Procedure.
- However, if the receivable is based on a judgment, no collateral is required.
- If the receivable is based on a document in the nature of a judgment, the court evaluates whether collateral is necessary.
- The compensation case is heard even in the court that imposed the provisional seizure.”
To provide general information; in practice, an amount of collateral corresponding to 10-15% of the receivable is usually ruled.
Implementation of Provisional Seizure
- After the court issues a provisional seizure decision, the creditor must apply to the enforcement office together with the decision. According to Article 261/1 of our Enforcement and Bankruptcy Law: “The creditor is obliged to request the enforcement office within the jurisdiction of the court that issued the provisional seizure decision to enforce the decision within ten days. Otherwise, the provisional seizure decision is automatically lifted.”
- The enforcement office places a provisional seizure on the debtor’s movable and immovable properties, receivables and rights in third parties.
- When the enforcement office carries out the seizure process, it prepares a seizure report. The seized properties and transactions are specified in the report.
Final Seizure:
The creditor may initiate enforcement proceedings after the provisional seizure process and proceed to final seizure proceedings. Final seizure includes the sale of the debtor’s properties in order for the creditor to collect his/her receivables.
Objection to Provisional Attachment
- The debtor may object to the provisional attachment decision. The objection must be filed with the court within seven days from the notification of the decision.
- The court evaluates the debtor’s objection and may lift the provisional attachment decision or decide to continue it.
Removal or Removal of Provisional Attachment
- If the debt is paid to the creditor or a decision is made to lift the provisional attachment, the provisional attachment is lifted.
- The debtor has the right to request the removal of the provisional attachment by providing collateral. The court may decide to lift the provisional attachment in return for collateral.
- If the provisional attachment decision is objected to within the time limit and the objection is accepted, the court may lift the provisional attachment decision.
- The creditor is obliged to request the enforcement of the decision from the enforcement office within the jurisdiction of the court that issued the provisional attachment decision within ten days from the date of the provisional attachment decision. Otherwise, the provisional attachment decision is automatically lifted.
Which Court is Competent in Provisional Attachment?
Depending on the nature of the case, it is the Civil Court of First Instance or the Commercial Court of First Instance.
Special Situations and Matters to be Considered
- Provisional attachment may also be requested for receivables that are not due. However, in this case, the existence of the risk of the debtor fleeing or smuggling goods must be demonstrated more precisely.
- Some goods cannot be seized by law. For example, the debtor’s tools and equipment that provide for his/her livelihood, and the items necessary for the minimum level of subsistence cannot be seized.
