Preliminary Attachment: Conditions, Security and Practice

Preliminary attachment may be requested for monetary claims that are due and unsecured by pledge. The claim need not be proven by written document, but the court must be persuaded to a prima facie (probable cause) standard (İİK m.258).

For a debt not yet due, one of the alternative grounds in m.257 must exist: no fixed residence, or the specified conduct aimed at evading obligations, such as concealment or removal of assets, flight or fraudulent acts against creditors. Both groups of grounds need not occur together.

The creditor seeking preliminary attachment must lodge security set by the court for damages that the debtor and third parties may suffer if the request proves unjustified. In practice this is generally set at between 10 % and 20 % of the claim.

No security is required where the claim rests on a judgment; where it rests on a document equivalent to a judgment, the court decides whether security is required. Security may be in cash, bank guarantee or government bonds.

Execution must be requested from the enforcement office within the issuing court's district within ten days of the decision (İİK m.261); this is a request deadline, not a requirement to complete every execution act within ten days. If attachment preceded any action or enforcement, the creditor has seven days from attachment, or service of the minutes if absent, to begin one. Article 264 also provides other follow-up deadlines, including one month from service of the merits judgment where the attachment accompanies an action.

Under m.265, a debtor not heard before the order may object to the issuing court within seven days of attachment if present, otherwise from service of the attachment minutes. An affected third party's period runs from knowledge. Available grounds and remedies depend on how the order was issued.

In enforcement and bankruptcy proceedings, the choice of enforcement track must be determined by the basis of the claim and the available documents. Although ordinary enforcement, commercial-paper enforcement, judgment-based enforcement, preliminary attachment, composition with creditors and bankruptcy may pursue the same outcome, they differ in time limits, available objections and costs.

Dates of service, objection or payment deadlines, attachment requests, sale-request periods and complaint deadlines are the most critical stages of the file. For this reason the dates of service of the payment order, enforcement order, attachment record, valuation report and sale notice should be tracked in a separate schedule.

For the creditor, interest calculation, the clarity of the enforcement request and the inquiry into the debtor's assets are decisive; for the debtor, grounds of objection, claims of exempt assets and the possibility of a negative declaratory action must be assessed from the outset. Otherwise, a procedural oversight may eclipse a meritorious position.