Precautionary Attachment Order
Provisional Attachment Order (TCC 257)
Provisional attachment is the temporary seizure of the debtor’s property by court order to ensure the timely payment of the creditor’s due monetary claim.
Provisional 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.
A provisional attachment does not grant the creditor the right to request a sale, as a final attachment does. It will not grant the right to request a sale of the provisionally attached assets until the attachment becomes final.
If the creditor wins the lawsuit they have filed or the enforcement proceedings they have initiated become final, the provisional seizure made previously will become 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, it is not possible to request a provisional seizure.
The claim must be a monetary claim.
As a rule, a provisional seizure order may be requested to secure due (matured) claims.
Exception: Conditions for requesting a provisional attachment for monetary claims that are not yet 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 their assets or attempts to do so.
If these circumstances are proven, a provisional attachment order may also be issued for deferred (unmatured) monetary claims.
OBTAINING A PROVISIONAL ATTACHMENT ORDER
In order for a provisional attachment to be placed on the debtor’s assets as a temporary measure, the court must issue a decision to that effect.
If the creditor meets the conditions mentioned above, they can apply to the general courts to obtain a provisional attachment order. To do so, the creditor must submit a petition to the court.
If the court finds the creditor’s claim and the reasons for provisional attachment put forward by the creditor to be justified, it will order the provisional attachment of the debtor’s property. Otherwise, it will reject the creditor’s request for provisional attachment.
***The creditor may appeal the decision rejecting the request for provisional attachment directly within two weeks.
The court may require the creditor to provide security in case the creditor is found to be unjustified. However:
If the claim is based on a judgment, the creditor is not required to provide security.
If the claim is based on a document with the nature of a judgment, the decision on whether the creditor must provide security is at the discretion of the judge.
If the claim is not based on a judgment or a document with the nature of a judgment, the creditor must provide security.
OBJECTIONS TO PROVISIONAL ATTACHMENT DECISIONS
As a rule, the debtor cannot directly appeal a provisional attachment decision issued by the general courts. However, the debtor may object to a provisional attachment decision issued without hearing the debtor on the following grounds:
-The jurisdiction of the court,
-The amount of security,
-The reasons for the 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 application of the counter-attachment (if the debtor is also present in the attachment) or from the date of notification. Third parties whose interests are harmed by the provisional attachment decision may also object. However, third parties cannot object to the court’s jurisdiction. If the debtor’s objection is rejected, they may appeal. The decisions rendered upon appeal are final.
ENFORCEMENT OF THE PROVISIONAL ATTACHMENT DECISION
After the provisional attachment order is issued, the creditor must request its enforcement from the enforcement office. The creditor must apply to the enforcement office within 10 days from the date of the provisional attachment order to request its enforcement. Otherwise, the provisional attachment order will lapse automatically.
EFFECT OF PROVISIONAL ATTACHMENT
Provisional attachment is the temporary attachment of a creditor’s due monetary claim through the court. This ensures that the creditor’s claim is secured. A provisional attachment does not grant the creditor the right to request a sale unless it is converted into a final attachment. The creditor must first initiate proceedings against the debtor or file a claim for payment in order to finalize the provisional attachment.
