Precautionary attachment is a temporary legal protection. Legal protection is a measure taken to prevent the outcome of a trial from being jeopardized before a final legal protection is established. The purpose of precautionary attachment is to protect the creditor and prevent the loss of rights in claims involving money or monetary equivalents.
The institution of precautionary attachment is regulated in Articles 257-268 of the Enforcement and Bankruptcy Law.
Conditions for Precautionary Attachment
- There must be a matured debt, and this debt must be monetary.
- The debt should not be secured by a pledge.
- There must be evidence justifying the precautionary attachment and the creditor’s claim.
- The creditor requesting the precautionary attachment must provide a security deposit to the court.
Precautionary Attachment Based on a Court Judgment
Precautionary attachment based on a court judgment is a type of precautionary attachment requested from the court by the creditor to establish the existence of the debt before initiating enforcement proceedings. With the precautionary attachment order obtained from the court, the debtor’s assets can be frozen. This decision provides protection for the creditor’s claim. According to Article 259 of the Enforcement and Bankruptcy Law, a security deposit is required to cover any damages the debtor or third parties might suffer if the creditor’s claim later proves to be unfounded. However, if the debt arises from a court judgment, no security deposit is required. Therefore, no security is needed for precautionary attachment based on a judgment.
For precautionary attachment based on a judgment, the creditor must prove the existence of the debt to the court. Usually, the creditor files a lawsuit with the relevant court to prove the debt. As a result of the lawsuit, the creditor’s claim is finalized by a judgment issued by the court. Afterwards, the creditor can apply for precautionary attachment based on this judgment.
Precautionary Attachment Based on Invoice Debt
Precautionary attachment based on invoice debt is a measure the creditor can apply for to secure the debt on the invoice from a debtor who fails to fulfill their payment obligation. In this case, the creditor requests a precautionary attachment order from the court, along with documents proving the existence and amount of the invoice.
This request is generally used by the creditor in situations where the debt exists but its collection is difficult. With the precautionary attachment order obtained from the court, the creditor secures their claim if the debtor fails to pay the invoice amount. This order provides protection for the creditor’s claim.
To request a precautionary attachment, the creditor must apply to the court with the invoice and relevant documents. The court evaluates the request and, if deemed necessary, issues a precautionary attachment order. With this order, an amount equal to the invoice value is blocked from the debtor’s bank accounts or other assets. As long as the debtor does not pay this amount, the creditor can maintain the precautionary attachment and later proceed with collection.
According to Article 259 of the Enforcement and Bankruptcy Law, the creditor requesting the precautionary attachment must provide a security deposit to guarantee compensation for any damages the debtor may suffer if the creditor’s claim is ultimately found to be unjustified.
Precautionary Attachment Based on a Negotiable Instrument
Negotiable instruments contain a promise to pay and are documents frequently used in commercial transactions.
The creditor requests a precautionary attachment order from the relevant court to secure the debt on the negotiable instrument. For this, the creditor must first prove the existence of the negotiable instrument and the debt it represents. The creditor submits the request and the necessary documents to the court. The court evaluates the creditor’s request and, if deemed appropriate, issues a precautionary attachment order. With this order, a precautionary attachment is applied to the debtor’s assets such as bank accounts and movable or immovable property to secure payment of the debts arising from the negotiable instruments. This way, the debtor’s assets are frozen, and the creditor’s claim is secured.
As a rule, within the scope of Article 84 of the Code of Civil Procedure (HMK)
(1) In the following cases, the defendant is required to provide an appropriate security to cover the probable litigation expenses:
a) Filing a lawsuit, intervening as a party alongside the plaintiff, or initiating proceedings by a Turkish citizen who does not have a habitual residence in Turkey.
b) Documentation showing that the plaintiff is experiencing payment difficulties due to reasons such as a prior bankruptcy ruling against them, the initiation of restructuring procedures through concordat or settlement, or the existence of a certificate of inability to pay debts.
(2) If situations and conditions requiring security arise during the course of the trial, the court shall also order the provision of security.
(3) In cases of compulsory joinder of claims and enforcement proceedings, the obligation to provide security arises only if this obligation exists for all plaintiffs.
As a rule, the party requesting precautionary attachment must provide a security deposit; however, since negotiable instruments have the nature of a court judgment document, it is up to the court to decide whether security is required.
In practice, for precautionary attachment requests based on negotiable instruments (such as promissory notes, checks, etc.), the court generally requires a security amounting to 15% of the claimed debt.
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Supreme Court, 23rd Civil Chamber, Case No. 209/2282, Decision No. 2019/3683:
According to Article 268/1 of the Enforcement and Bankruptcy Law (EBL), if goods subject to a precautionary attachment are seized by another creditor before the precautionary attachment becomes a final attachment, the holder of the precautionary attachment shall automatically and temporarily participate in the seizure under the conditions of Article 100 of the EBL. Furthermore, according to Article 138 of the EBL, shares allocated for provisional attachments are to be deposited in a reliable bank until the situation is clarified; if no bank is available, the funds are to be deposited in the court or enforcement offices.
In this case, the precautionary attachment claim in the defendant’s file shall automatically participate in the seizure pursuant to Article 268 of the EBL by reference to Article 100 of the EBL. Also, shares must be allocated for precautionary attachment proceedings in accordance with Article 138/4 of the EBL.
Based on these grounds, the decision to reject the complaint was upheld. Upon the complainant’s attorney’s appeal, the Istanbul Regional Court of Appeal dismissed the application on the merits. The complainant’s attorney appealed the decision.
Based on the documents in the file, the evidence supporting the decision, the mandatory reasons, and the absence of any error in the evaluation of the evidence, the complainant’s attorney’s appeals were found to be unfounded.
RESULT: For the reasons stated above, it was decided to reject all the complainant’s attorney’s appeals and to AFFIRM the judgment as procedurally and legally appropriate.
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Supreme Court, 11th Civil Chamber, Case No. 2018/3486, Decision No. 2019/5280:
Upon the plaintiff’s attorney’s appeal, the Bursa Regional Court of Appeal characterized the plaintiff’s request as a precautionary attachment and held that the case was an action for determination. It ruled that a precautionary attachment order cannot be issued concerning a debt not subject to the lawsuit, and therefore rejected the plaintiff’s appeal against the precautionary measure on the merits.
The plaintiff’s attorney appealed the decision part regarding the rejection of the appeal on the precautionary measure by the Regional Court of Appeal. However, pursuant to Article 362/1-f of the Code of Civil Procedure No. 6100, the decision of the Regional Court of Appeal is not subject to further appeal. Therefore, it was necessary to reject the plaintiff’s attorney’s appeal request.
RESULT: For the reasons explained above, the plaintiff’s attorney’s appeal was REJECTED by unanimous decision on 11/09/2019.
