Provisional Attachment Objection
A provisional attachment order is a type of temporary legal protection aimed at securing the collection of the creditor’s claim. When a provisional attachment order is issued, the debtor’s assets are temporarily seized. The court may issue a provisional attachment order upon the creditor’s request. When issuing a provisional attachment order, the court may hear the debtor’s side or issue the provisional attachment order without hearing the debtor. In practice, provisional attachment orders are usually issued without hearing the debtor. In this case, if the court decides to hear the debtor, the debtor may dispose of their assets before the provisional attachment order is issued and render the enforcement proceedings or lawsuit filed against them ineffective.
Therefore, the provisional attachment order is issued without hearing the debtor. This practice, which results in a favorable outcome for the creditor, eliminates these drawbacks but may also lead to unfair results for the debtor. For example, even if the conditions for provisional attachment do not exist, the court may have issued a provisional attachment order against the debtor, or the court may have issued a provisional attachment order despite lacking jurisdiction. To eliminate such drawbacks, the debtor is given the opportunity to object to the provisional attachment order. The debtor may have the order lifted by objecting to the provisional attachment order within the specified period.
1. Conditions for Objecting to Provisional Attachment
The first condition for the debtor to be able to object to the provisional attachment decision issued against them is that the provisional attachment decision must have been issued without hearing the debtor. If the provisional attachment decision was issued after the debtor was heard, it is not possible for the debtor to object to this decision. According to Article 265 of the Enforcement and Bankruptcy Law;
“The debtor may object to the reasons for the provisional attachment decision being issued without a hearing, the court’s jurisdiction, and the security; in attachments made in the debtor’s presence, the debtor may object to the attachment decision within seven days from the date of notification of the attachment record to the court, otherwise.”
Objections to the provisional attachment order may only be based on the limited grounds specified in the text of the article. Objections cannot be made on any other grounds. Accordingly, objections to the provisional attachment order may be based on the grounds on which the provisional attachment is based, the provisional attachment order being issued by an incompetent court, or the security.
Third parties other than the debtor whose interests are affected by the provisional attachment may also object to the provisional attachment. However, their objections cannot relate to the jurisdiction of the court. They may object to the grounds for the provisional attachment and the security.
The debtor must attach all documents on which the objection is based to the objection petition.
2. Time Limit for Objecting to a Provisional Seizure Decision
Provisional seizure must be made within 7 days; the right to object expires at the end of this period. The start of the period is calculated based on the date the attachment was applied in attachments where the debtor was present, and the date the attachment record was served on the debtor in attachments where the debtor was not present. The judge is obliged to investigate and assess whether the objection to the provisional attachment decision was made within the time limit.