3. Competent Authority and Court for Objecting to a Provisional Attachment Order
Objections to a provisional attachment order must be filed with the court that issued the provisional attachment order. The review must also be conducted by the same court and in a hearing. The following Supreme Court decisions emphasize the following points:
“According to the İzmir 1st Civil Commercial Court, except in cases where a lawsuit has been filed regarding the claim subject to the provisional attachment order pursuant to Article 264 of the Enforcement and Bankruptcy Law, objections to the provisional attachment order shall be made to the court that issued the provisional attachment order within the framework of Article 265 of the Enforcement and Bankruptcy Law, and this court shall decide on the objection within the scope of Article 265 of the Enforcement and Bankruptcy Law.
In the present case, the 2nd Civil Court of First Instance, which issued the provisional attachment order, decided to accept the objection in file no. 2015/204, and the court examining the objection cannot issue a decision of lack of jurisdiction or incompetence. The court authorized to rule on the objection regarding the lifting or modification of the provisional attachment order is the 2nd Civil Court of First Instance. T he court ruled that the court authorized to rule is the 2nd Civil Court of First Instance, as the objection regarding the lifting or modification of the provisional attachment order was filed with the 2nd Civil Court of First Instance.
The court reviews the case based on the submitted grounds and accepts or rejects the objection.
In the specific case, the debtor… Tic. Ltd. Şti. objected to the court’s jurisdiction and authority, and in this case, the court that will review the case based on the grounds presented and accept or reject the objection is the 2nd Civil Court of First Instance that issued the provisional attachment order.
In another decision, the Court of Cassation drew attention to the necessity of holding a hearing;
“The request relates to an objection to the provisional attachment decision. Pursuant to Article 265/final of the Code of Civil Procedure, upon objection, the court must summon and hear both parties; if neither party appears, it shall examine the objection based on the documents and, if it finds the objection justified, shall amend or revoke its decision; otherwise, it shall reject the objection. Therefore, it is incorrect to proceed directly to an examination based on the documents without summoning both parties.”
Article 265/1 of the EBC stipulates that the debtor may object to the grounds for the provisional attachment decision without the court’s authority and guarantee being heard; in attachments made in the presence of the debtor, the attachment shall be enforced, otherwise the debtor may object to the court within seven days from the date of notification of the attachment record to him/her. Article 265/3 stipulates that the court shall examine the reasons presented and decide whether to accept or reject the objection.
Our court’s previous decision was overturned by our Chamber’s decision dated 15/04/2015 and numbered 2014 18576 E-2015/ 5325 K., stating that the request was for the lifting of the provisional seizure decision and that the decision should be made by opening a hearing, not based on the documents. In the retrial conducted in accordance with the reversal decision, while the objection to the provisional attachment order should have been decided positively or negatively, the issuance of a new provisional attachment order was contrary to our Chamber’s reversal decision and Article 265/3 of the Enforcement and Bankruptcy Law, necessitating the reversal of the decision.
4. Reasons for Objecting to Provisional Attachment
The grounds for objecting to provisional attachment are listed in a limited manner in the Law. The grounds for objection, divided into three groups in Article 265 of the Enforcement and Bankruptcy Law, are stated as objections related to the grounds for provisional attachment, the jurisdiction of the court, and suretyship. However, in practice, there is uncertainty regarding what objections related to the grounds for provisional attachment may be. Here, we will attempt to clarify this issue based solely on Supreme Court decisions. In particular, it is debatable whether objections related to the non-existence or non-payment of the claim fall within this scope. This is because if there is no claim, the existence of provisional attachment would also become meaningless. Below are examples from Supreme Court decisions regarding grounds accepted and not accepted as valid reasons for objection to provisional attachment.
In the following decision, the fact that the invoices forming the basis of the provisional attachment decision had been appealed was accepted as a valid reason for objecting to the provisional attachment decision, and it was decided to lift the provisional attachment decision;
“The attorney requesting the provisional attachment filed a request for provisional attachment based on 14 invoices, and the request was deemed appropriate and the court issued a provisional attachment order. The attorney objecting to the provisional attachment requested that the provisional attachment be lifted, stating that the invoices on which the provisional attachment was based had been objected to through notifications sent via a notary public.
Th e court ruled that the party requesting the provisional attachment did not present the invoices and notifications sent by the debtor through a notary public when making the request, and that if it had known about these documents and information, it would not have been convinced of the existence of the claim, and that the situation preventing the formation of a conviction regarding the existence of the claim was understood upon objection, and therefore decided to lift the provisional attachment, and the decision was upheld.[4]
In another decision, it was stated that an objection to the signature on the check cannot be accepted as grounds for an objection to the provisional attachment, and that this objection can only be raised in a negative determination lawsuit;
“The debtor’s representative, who objected to the provisional attachment decision, stated that the signature on the check used as the basis for the provisional attachment decision did not belong to the client company’s representative, that the bank did not process the check because the signature of the drawer on the check did not match the signatures of the company representatives at the bank, that the date of issue on the check had been altered, and that the signature on the check did not belong to the client company’s representative.”
that the bank did not process the check because the signature of the drawer on the check did not match the signature of the company representative at the bank, that the check was tampered with on the date of issuance, that it was incorrect to issue a provisional attachment order when there was doubt about the existence of the claim, and that the supporting document did not constitute valuable paper, requesting that the provisional attachment order be lifted.
The case concerns an objection to provisional seizure. T he grounds for objection to provisional seizure are regulated in Article 265 of the Enforcement and Bankruptcy Law, and the issue raised in the case in question is not one of the grounds listed in that article. Th e reasons put forward are only issues that can be raised in a negative determination case. Considering that the plaintiff company may have other representatives, that the grounds for the provisional attachment objection require a comprehensive examination, that such a case cannot be examined, and that it is not possible to accept the request based on findings made by bank employees outside the case and which do not constitute evidence before the courts, the provisional attachment objection should have been rejected. The above points were disregarded, and the written ruling must be overturned.
Contrary to the Supreme Court’s previous ruling, it was decided that the issue of dual representation should be accepted as a reason for objecting to the provisional attachment decision and that the court should examine the signature circular and reach a conclusion.
“The grounds for objection to provisional attachment are limited and formal in nature, and no objection to the provisional attachment decision can be made on grounds other than these. However, in the specific case, considering that the objection that the company was not bound by the check because it was signed with a single signature was an objection within the scope of the grounds on which the provisional attachment decision was based, the court should have evaluated the objection of the company against which the provisional attachment decision was issued in accordance with both Article 321/3 of the Turkish Commercial Code and the signature circular submitted at the objection stage. the court’s reasoning that this issue would be addressed in the main proceedings was not considered valid, and the decision had to be overturned.
The request to lift the provisional attachment was rejected on the grounds that the objection that the check amount had been paid was not one of the grounds for objection to provisional attachment listed in the law. The following finding was made in the decision in question:
“In the present case, the debtor who objected to the provisional attachment order requested that the provisional attachment order be lifted, claiming that the debt had been paid and that there was no intent to conceal assets. The court accepted the request with written reasons. However, the objection that the check amount had been paid is not one of the grounds for objection listed in the law and is an allegation that could be the subject of a negative determination lawsuit.”
Another decision stated that objections regarding the signature on the check and the transfer of the check without consent were not evaluated under Article 265 of the Enforcement and Bankruptcy Law.
The fact that the claim subject to provisional attachment is secured by a pledge is one of the grounds for objection to the provisional attachment decision. This is because provisional attachment can only be applied to claims that are not secured by a pledge.
The important point to note in all these objections regarding the existence of the claim is this: the provisional attachment decision is a decision made based on the approximate evidence provided by the creditor. Here, the court has not yet conducted a trial and has not reached a definitive conclusion regarding the existence or non-existence of the claim. Similarly, it can be said that the grounds for the provisional attachment objection are limited in order to prevent this application from turning into a lawsuit requiring an examination of the merits of the underlying claim. This is also the reason why matters that should be examined in another lawsuit cannot be accepted as grounds for an objection to a provisional attachment.
An objection to a provisional attachment order may also be made on the grounds that the court issuing the provisional attachment order is not competent.
Since the provisional attachment decision must be issued in exchange for collateral provided by the creditor, the creditor may object to the provisional attachment if they did not provide collateral when obtaining the provisional attachment decision or if the collateral provided is insufficient. The court may also decide, depending on the circumstances, to require collateral to be provided or to change the amount or type of collateral.