3. Competent and Authorized Court for Objecting to Provisional Attachment
Objections to a provisional attachment decision must be made to the court that issued the provisional attachment decision. The review must also be conducted by the same court and in a hearing. The Supreme Court decisions below emphasize these points:
“According to the Izmir 1st Civil Commercial Court, except in cases where a lawsuit has been filed regarding the claim subject to provisional attachment pursuant to Article 264 of the Enforcement and Bankruptcy Code, objections to the provisional attachment decision shall be made to the court that issued the provisional attachment decision within the framework of Article 265 of the Enforcement and Bankruptcy Code, and that court shall decide on the objection within the scope of Article 265 of the Enforcement and Bankruptcy Code. In the specific case, the 2nd Civil Court of First Instance, which issued the provisional attachment order, ruled to accept the objection in case file no. 2015/204, and the court reviewing the objection cannot rule on lack of jurisdiction or incompetence. The competent court to decide on the objection regarding the lifting or modification of the provisional attachment order is the 2nd Civil Court of First Instance. The court ruled that it lacked jurisdiction on the grounds that the competent court to decide on the objection regarding the lifting or modification of the provisional attachment order was the 2nd Civil Court of First Instance.
The court will examine the case based on the reasons presented and either accept or reject the objection.
In the specific case, the debtor… Tic. Ltd. Şti. objected to the court’s jurisdiction, and in this case, the court that will examine the case based on the reasons presented and accept or reject the objection is the 2nd Civil Court of First Instance, which issued the provisional attachment order.
In another decision, the Court of Cassation drew attention to the necessity of conducting 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 an objection, the court must summon both parties and hear them; if neither party appears, it must examine the objection based on the documents and, if it finds the objection valid, change or revoke its decision; otherwise, it must reject the objection. Therefore, proceeding directly to an examination based on the documents without summoning both parties was incorrect.”
Article 265/1 of the EBC states that the debtor may object to the grounds for the provisional attachment issued without hearing the debtor, the court’s jurisdiction, and the security; in attachments made in the debtor’s presence, 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. Article 265/3 states that the court shall examine the reasons presented and decide whether to accept or reject the objection.
The previous decision issued by the court was overturned by our Chamber’s ruling dated 15/04/2015, numbered 2014 18576 E-2015/ 5325 K., stating that the request was related to the lifting of the provisional seizure decision and that a decision should be made by opening a hearing rather than based on the documents. In the retrial conducted in compliance with the reversal ruling, it was deemed incorrect to issue a new provisional attachment order when a positive or negative decision on the objection to the provisional attachment order was required, contrary to both our Chamber’s reversal ruling and Article 265/3 of the Enforcement and Bankruptcy Code. Therefore, the decision must be reversed.
4. Reasons for Objecting to Provisional Attachment
The reasons for objecting to provisional attachment are listed in a limited manner in the Law. The reasons for objection, classified into three groups in Article 265 of the EBC, are stated as objections related to the reasons for provisional attachment, the jurisdiction of the court, and the guarantee. However, in practice, there is uncertainty, particularly regarding what objections 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 regarding the non-existence or payment of the claim fall within this scope. This is because if there is no claim, the existence of the provisional attachment would also become meaningless. Below are examples from Supreme Court decisions regarding which grounds are accepted as valid grounds for objection to provisional attachment and which are not.
In the following decision, the fact that the invoices used as the basis for the provisional attachment were contested was accepted as a valid reason for objection to the provisional attachment, and it was decided to lift the provisional attachment;
“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 by means of notices sent by a notary public.
The court ruled that the party requesting the provisional attachment did not submit the notices sent by the debtor through a notary regarding the invoices and the debt when making the request, that if the court had been aware of these documents and information, it would not have been convinced of the existence of the claim, and that the situation preventing the formation of an opinion regarding the existence of the claim was understood upon objection, and therefore ruled 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 objecting to the provisional attachment, and that this can only be raised in a negative determination lawsuit;
“The debtor’s representative, who objected to the provisional attachment, stated that the signature on the check used as the basis for the provisional attachment did not belong to the representative of the client company, that the bank did not process the transaction because the signature of the drawer on the check did not match the signatures of the company representatives at the bank, that alterations were made on the date of issuance, and that the signature on the check did not belong to the representative of the client company.” belonged to his client’s company representative, that the bank did not process the check because the drawer’s signature on the check did not match the company representative’s signature on file at the bank, that the check had been tampered with on the date of issue, that it was incorrect to issue a provisional attachment order when the existence of the claim was in doubt, and that the supporting document did not qualify as a negotiable instrument, requesting that the provisional attachment order be lifted.
The case concerns an objection to provisional attachment. The grounds for objection to provisional attachment are set out in Article 265 of the Enforcement and Bankruptcy Code, and the issue raised in the specific dispute is not one of the grounds listed in that article. The 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 objection to the provisional attachment require extensive examination, that such a case cannot be examined, and that it is not possible to grant the request based on the findings made by bank employees outside the case, which do not constitute evidence before the courts, the objection to the provisional attachment should have been rejected. the aforementioned issues were overlooked, and the written ruling necessitated reversal.
Contrary to the previous decision, the following Supreme Court decision ruled that the issue of dual representation should be accepted as grounds for objection to the provisional attachment 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 based on reasons other than these. However, in the case at hand, considering that the objection that the company is not bound by the check due to it being signed by a single signature is an objection within the scope of the grounds on which the provisional attachment is based, the court should have evaluated the objection of the company against which the provisional attachment decision was made in accordance with both Article 321/3 of the Turkish Commercial Code and the signature circular submitted during the objection phase, but the court’s reasoning that this issue would be considered in the main proceedings was not deemed appropriate, and the decision must therefore 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 reasons for objecting to provisional attachment listed in the law. The following finding was made in the decision in question:
“In the specific case, the debtor objecting to the provisional attachment claimed that the debt had been paid and that there was no intent to conceal assets, requesting that the provisional attachment be lifted. The court decided to accept 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 but is a claim that could form the subject matter of a negative determination lawsuit.”
In another decision, objections regarding the signature on the check and the check being transferred without consent were not considered 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 provisional attachment. This is because provisional attachment can only be applied to claims that are not secured by a pledge.
The point to be considered in all these objections regarding the existence of the claim is this: the provisional attachment decision is a decision given within the scope of approximate proof to be provided by the creditor. Here, the court has not yet conducted a trial and reached a definitive conclusion regarding the existence or non-existence of a claim. Similarly, it can be said that the grounds for objection to provisional attachment are limited in order to prevent this application from turning into a trial requiring an examination of the merits of the underlying claim. This is also the reason why matters requiring examination in another lawsuit should not be accepted as grounds for objection to provisional attachment.
An objection to provisional attachment may also be raised on the grounds that the court issuing the provisional attachment order lacks jurisdiction.
Since the provisional attachment decision must be issued in exchange for collateral provided by the creditor, the creditor may also object to the provisional attachment if they did not provide any collateral when obtaining the provisional attachment decision or if the collateral provided was insufficient. The court may also decide, depending on the circumstances, that collateral should be provided or that the amount or type of collateral should be changed.