Provisional attachment is a type of attachment placed temporarily on the debtor's assets to secure collection of unfinalized monetary claims. It is regulated under Articles 257-269 of the Enforcement and Bankruptcy Code. It prevents the debtor from hiding assets during the prolonged litigation process and protects the rights of the creditor.
Provisional Attachment Conditions
- There must be a monetary claim that has become due (an interim measure may be ordered for a claim not yet due)
- The claim must not be secured by a pledge
- The debtor being at an uncertain address, risk of asset hiding or absconding
- The creditor must deposit a guarantee (usually 15% of the claim)
Competent Court
Provisional attachment is requested from the enforcement court in the jurisdiction of the court competent for the main claim. As it is an urgent decision, the decision is usually made within 1-3 days from the application.
Guarantee Amount
The creditor requesting provisional attachment must deposit a guarantee to cover the damage the debtor will incur in case the decision is wrong. The guarantee amount usually varies between 15-20% of the claim. It can be deposited as a bank guarantee letter or in cash.
Steps to Be Taken After Provisional Attachment
- The provisional attachment must be applied within 10 days after the decision is issued
- The main lawsuit must be filed within 7 days (otherwise the provisional attachment lapses)
- The debtor can object to the enforcement court within 7 days from notification of the decision
Debtor's Objection
The debtor may assert that the claim has been paid, the maturity has not come, there is no claim, or the guarantee amount is insufficient. The enforcement court resolves the objection within 7 days. Appeal is open against the decision.
Consequences of Provisional Attachment
When attachment is placed on the debtor's assets, they cannot dispose of these assets. Even if transferred to third parties, the creditor can follow these assets. The debtor's bank accounts, real estate, vehicles, and receivables can be attached.
As Elazığ Law Office
In provisional attachment processes, we provide full services to our clients as creditor or debtor party: petition preparation, guarantee process, attachment application, evaluation of objections and representation at the enforcement court.