Precautionary seizure is the temporary seizure of the debtor’s property in advance by a court decision in order to guarantee the timely payment of a money receivable. If the creditor thinks that the debtor will not pay his debt when the time comes, he can quickly seize the debtor’s property without filing a lawsuit or enforcement proceeding. With the provisional lien, the debtor is prevented from transferring his assets to third parties. The purpose here is to prevent bad faith debtors from causing losses to creditors by stealing goods.
What are the Precautionary Seizure Conditions?
The receivable in question must be a monetary debt.
This debt must not be secured by a pledge. Finally exceptions
It is required that the debt be due, that is, it is due.
There are exceptions to the requirement that the debt be due. One of these is the situation where the debtor does not have a specific residential address.
Another exceptional situation listed in Article 257 of the Execution and Bankruptcy Law is the situation where the debtor runs away, smuggles property or is in such preparations. In this case, what needs to be considered is whether the debtor’s will is intended to perform these actions.
What are the differences between precautionary measures?
Precautionary lien is considered a special type of preliminary injunction.
The purpose of using the provisional lien institution is collateral. However, the purpose of the precautionary measure may be assurance, or it may be any action or protection purpose.
In the provisional lien institution, the only issue is money receivables. However, interim measures may be granted for any request that may be subject to legal protection. Interim injunction has the status of a general regulation.
Although the reasons for provisional seizure are limited by law, there is no limitation in the law in terms of the reason for the provisional injunction.
How to Request a Precautionary Lien?
If a request is to be made after the receivable lawsuit is filed, the provisional lien request is made to the court handling the receivable case. If a request is to be made before the lawsuit is filed, the Civil or Commercial Courts of First Instance are responsible for the decision in question, regardless of the amount of the receivable.There is no need to resort to mediation. However, if the receivable arises from a rental relationship, the Civil Court of Peace has jurisdiction.
What is the Precautionary Seizure Guarantee Amount?
The guarantee is required so that the creditor can request the provisional attachment decision, which is often given without even hearing the debtor. It is not possible for the creditor to receive the decision unless he deposits the requested provisional lien security deposit to the court cashier. In practice, the amount of collateral requested is generally fifteen percent of the receivable amount.
The provisional lien guarantee can be withdrawn if certain conditions are met if the decision is put into execution.
If the enforcement proceeding has become final for the debtor, the relevant enforcement office must be visited and a notice stating that the enforcement proceedings have been finalized must be obtained. In this case, the provisional lien becomes final. After the dekenar is approved by the enforcement directorate, you must apply to the court clerk with your provisional lien deposit refund petition and dekenar.
How to Implement the Precautionary Seizure Decision?
The creditor must request the enforcement of the provisional attachment decision given by the court from the competent enforcement office. Within the scope of the decision by the enforcement office, the debtor’s movable and immovable properties and receivables, if any, may be seized.
The creditor must apply to the authorized enforcement office within the ten-day provisional seizure period imposed by the court. Otherwise, the provisional seizure decision will terminate automatically and its implementation will not be possible.
The debtor must file a complaint against the decisions implemented by the enforcement office without considering the ten-day period. Because it is a responsibility arising from the law that the prosecution of the said period is taken into consideration ex officio by the officers in charge of the enforcement directorate. There is no time limit for such a complaint to be made by the debtor.
The competent enforcement office for the implementation of the decision is the enforcement office located in the jurisdiction of the court that made the decision. One
The bailiff is bound by the debtor’s assets shown in the decision. In other words, if the decision does not mention that the debtor’s receivables from third parties will be seized, the enforcement officer cannot automatically include these receivables.
Even if the receivable is a foreign currency debt, the creditor must make a request in Turkish currency.
Objection to Decision
In order for a provisional attachment decision to be made, it is sufficient for the creditor to form an approximate opinion in the court regarding the necessity of the decision. The creditor is not required to prove the necessity in question conclusively. Hearing the debtor while making a decision is a matter completely within the court’s discretion. Considering the debtor’s situation, the legislator felt it necessary to grant the debtor a right of objection.
In order for the debtor to apply for this objection, the decision must first be given in his absence. If the debtor meets this condition, he has three issues against the decision.