Precautionary Attachment Order
Provisional Attachment Decision (TCC 257)
Precautionary attachment is the temporary seizure of the debtor’s property by court order to ensure that the creditor’s claim is paid on time.
Precautionary attachment may be carried out before a lawsuit is filed or enforcement proceedings are initiated. If the creditor is concerned that the debt will not be paid on time, they may request the court to temporarily seize the debtor’s assets.
Precautionary seizure does not give the creditor the right to request sale, as does definitive seizure. Until the seizure becomes definitive, it does not give the right to request the sale of the temporarily seized assets.
If the creditor wins the lawsuit they have filed or the enforcement proceedings they have initiated become final, the provisional seizure previously made becomes a final seizure.
CONDITIONS FOR REQUESTING PROVISIONAL SEIZURE
The claim must not be secured by a pledge.
If the claim is secured by a pledge, a request for provisional seizure cannot be made.
The claim must be monetary.
As a rule, a provisional seizure order may be requested to secure claims that have fallen due.
Exception: Conditions for requesting provisional seizure for monetary claims that have not yet fallen due (future claims):
-The debtor’s place of residence cannot be found or is unknown,
-The debtor engages in fraudulent transactions to evade their obligations,
-The debtor disposes of or attempts to dispose of their assets.
If these circumstances are established, a provisional attachment order may also be issued for deferred (not yet due) monetary claims.
OBTAINING A PROVISIONAL ATTACHMENT ORDER
A court order is required to place a provisional attachment on the debtor’s assets as a temporary measure.
If the creditor meets the above conditions, they may apply to the general court for a provisional attachment order. To do so, the creditor must submit a petition to the court.
If the court finds the creditor’s request and the reasons for provisional seizure justified, it will decide to place a provisional seizure on the debtor’s assets. Otherwise, it will reject the creditor’s request for provisional seizure.
***The creditor may directly appeal the decision rejecting the request for provisional seizure within two weeks.
The court may request the creditor to provide security if the creditor is found to be unjustified. However:
If the claim is based on a judgment, the creditor is not required to provide security.
I f the claim is based on a document of a judgmental nature, it is at the discretion of the judge whether the creditor is required to provide security.
If the claim is not based on a judgment or a document having the nature of a judgment, the creditor must provide security.
OBJECTIONS TO PROVISIONAL ATTACHMENT DECISIONS
As a rule, the debtor cannot directly object to a provisional attachment decision issued by the general courts. However, the debtor may object to a provisional attachment decision issued without hearing him/her on the following grounds:
-The court’s jurisdiction,
-The amount of security,
-The grounds for provisional attachment.
The debtor may object to the provisional attachment order by applying to the court that issued the order within 7 days of the enforcement of the counter-attachment order (if the debtor is also present at the attachment) or from the date of notification. Third parties whose interests are harmed by the provisional attachment order may also object. However, third parties cannot object to the court’s jurisdiction. If the debtor’s objection is rejected, they may object. Decisions made upon objection are final.
ENFORCEMENT OF THE PROVISIONAL ATTACHMENT ORDER
After the provisional attachment order is issued, the creditor must apply to the enforcement office for enforcement proceedings. The creditor must apply to the enforcement office within 10 days from the date the provisional attachment order was issued to request its enforcement. Otherwise, the provisional attachment order expires automatically.
EFFECT OF PROVISIONAL ATTACHMENT
Provisional seizure is the temporary seizure of the creditor’s overdue monetary claim through the court. This ensures that the creditor’s claim is secured. Provisional seizure does not give the creditor the right to request a sale unless it is converted into a final seizure. To finalize the provisional seizure, the creditor must first file a lawsuit against the debtor or request payment.