What is a preventive lien?

There are various types of temporary legal protections in our legislation. Precautionary lien, one of these protections, constitutes a special type of precautionary measure. For this reason, it is closely related to precautionary measures. While provisional injunction is regulated in the HMK, the provisions regarding provisional seizure are included in the EBL. It should be noted from the very beginning that; The concepts of provisional injunction and provisional seizure regulated in HMK are concepts that have many differences. Since our subject of examination is the title of what is provisional lien, only evaluations related to it will be made in this title. However, in order to understand the subject better, it will be necessary to touch upon the differences between provisional injunction and provisional seizure below.

Precautionary seizure In Article 257 of the EBL, "The creditor of a "money debt" that is not secured by pledge and is due may have the movable and immovable properties, receivables and other rights of the debtor held by the debtor or a third party, provisionally seized." organized as follows. When the text of the article is examined, it will be seen that the protective effect of the provisional seizure is only related to money receivables. This is the reason why this protection is regulated in the İİK instead of the HMK. Moreover, this point constitutes the most distinctive and distinctive feature of the provisional lien. In addition, it should be noted that provisional seizure is only possible for receivables that are not secured by pledge. Another issue stated in the text of the article is that a provisional attachment decision can be made in respect of overdue money receivables. However, as we will state below under the heading of conditions of provisional seizure, this rule is not absolute.

So, based on Article 257 of the EBL, the concept of provisional lien; "It is a temporary legal protection that allows the debtor's assets to be seized by court decision in order to secure the outcome of the current or future pursuit of money receivables." We can define it as follows.

DIFFERENCES BETWEEN PREVENTIVE SEIZURE AND PRECAUTIONARY MEASURES

As we mentioned above, provisional seizure constitutes a special type of precautionary measure. In a recent decision of the 11th Civil Chamber of the Supreme Court of Appeals, this situation was stated as follows: "Precautionary lien is a special type of precautionary measure regulated in Articles 389 et al. of the Code of Civil Procedure, and the plaintiff has clearly requested provisional seizure pursuant to Article 257 of the EBL. In this case, the court has taken into consideration that the request is in the nature of a provisional seizure and evaluated whether the conditions in Article 257 of the EBL have been met." "The decision must be made according to the result that will be achieved." In addition, there are many differences between the two institutions. It is possible to count these differences as follows:

1- While provisional seizure is only possible for money receivables, there is no limitation in terms of provisional measures.

2- Precautionary measure is a general provisional lien, whereas it is a special regulation.

3- While provisional lien provides security for money receivables, the precautionary measure is in the nature of preventive protection.

4- If the provisional lien creditor is vindicated in the enforcement proceedings or lawsuit, the seized property is put up for sale and the sales price is paid to the creditor. In case of precautionary measures, the goods for which the measure has been taken must be returned in the same condition.

5- In order for a provisional attachment decision to be made, the creditor does not need to prove that his receivable is in danger. The existence of the conditions is sufficient for the decision to be made.

In the decision numbered 2017/16298 K. of the 22nd Civil Chamber of the Supreme Court of Appeals, the similarities and differences between the two protections are expressed as follows:

"According to Article 389 of the Code of Civil Procedure No. 6100, "In cases where it is feared that obtaining the right will become significantly difficult or completely impossible due to a change that may occur in the current situation, or that an inconvenience or serious damage will arise due to delay, a provisional injunction may be issued regarding the subject of the dispute." Precautionary lien, on the other hand, is a special type of provisional injunction, and its subject and the provisions it is subject to. It is different from provisional injunction in terms of provisional injunction. While provisional injunction is only in question in lawsuits or proceedings regarding money receivables, injunction is, as a rule, in cases related to things other than money and the movable and immovable properties that are in dispute, whereas in provisional injunction the goods seized are not the subject of the lawsuit filed or to be filed, in provisional injunction the goods on which injunction is subject to dispute are the subject of the case.

PREVENTIVE LIEN CONDITIONS

According to Article 257 of the EBL, the provisional seizure conditions are as follows:

1- There must be a money receivable.

2- The money debt must not be secured by pledge.

3- The receivable must be due. (There are exceptions to this.)

4- The creditor must deposit collateral with the court.

CAN A PRECAUTIONARY SEIZURE BE MADE FOR RECEIVABLES THAT ARE NOT DUE?

When listing the provisional lien conditions above, we stated that the existence of a due money debt is required. This situation is regulated in Article 257 of the EBL with the following expressions: "The creditor of a "money debt" that is not secured by pledge and is due..." However, in the 2nd paragraph of the same article, this time, in some exceptional cases, the way for a provisional attachment decision to be given for undue money debts has been opened. Therefore, a provisional lien can be made for undue receivables in the following cases:

1- If the debtor does not have a specific residence;

2- If the debtor prepares to hide, smuggle, or flee his/her assets in order to escape from his/her commitments, or "escapes" or engages in fraudulent transactions that violate the rights of the creditor for this purpose.

We feel the need to mention one more issue regarding maturity here. A provisional attachment decision cannot be made for conditional receivables. In the decision of the Grand General Assembly of the Supreme Court of Appeals Unifying Jurisprudence dated 27.12.2017, it was stated that the concepts of maturity and maturity are different concepts and it was ruled that a provisional attachment decision cannot be given in respect of a receivable that is not due. Therefore, it has become clear whether a provisional seizure can be made in terms of bank guarantee receivables. The relevant parts of this decision are as follows:

"…. D- In Article 257 of the Execution and Bankruptcy Law titled "Conditions of Precautionary Seizure", an existing and due debt is mentioned. However, in a suspensive conditional receivable, the legal transaction is subject to the realization of the condition. In the suspensive condition, the provisions of the transaction begin not on the date of the legal transaction, but as a rule, at the moment the condition is fulfilled. Although the legal transaction occurred before the condition is fulfilled, this transaction does not constitute a right in favor of the creditor. It is not yet clear whether it will arise or not, and there is only an expectation in terms of the conditional receivable. Since determining that the condition has been accrued will only require a court decision, it is not possible to collect this receivable by pursuing it through general seizure.

Because it will be clear whether the doubtful and future event will occur or not, and whether the contingent debt will give rise to a demandable and traceable receivable, only when the condition is fulfilled. It cannot be said that the cost of the letter of guarantee, which has not yet been compensated, or the legal reserve amount that the bank will have to pay due to the possibility that it may be unrequited, is a current and due receivable before the risk occurs. As a matter of fact, it has been accepted that it is not possible to request a provisional attachment for a conditional receivable in accordance with Article 257 of the Enforcement and Bankruptcy Law.

E- Precautionary lien conditions are listed in Article 257 of the Enforcement and Bankruptcy Law. In the amendment made to this article with the 59th article of Law No. 4949 dated 17.07.2003, the title of the article was changed from "Precautionary lien" to "Conditions of provisional lien"; The phrase "debt" in the first paragraph has been changed to "money debt". This change shows that, although it is possible to proceed with general seizure without a judgment for collateral receivables in accordance with Article 42 of the Execution and Bankruptcy Law, a provisional seizure decision cannot be given. Because in Article 257 of the Enforcement and Bankruptcy Law, provisional attachment is foreseen only for "money receivables". Lien; Since it is not an "enforcement action" but a special temporary legal protection institution, a decision can only be made within the framework of the conditions set out in Article 257 of the Enforcement and Bankruptcy Law. In that case, a provisional attachment decision cannot be made for the "depository" of the collateral..."

PRECAUTIONARY SEIZURE DECISION

The provisional attachment decision is a decision given by the court upon the request of the creditor. The trial of the decision requested by the creditor by applying to the court cannot be described as a lawsuit. It's like; 258/2 of the EBL. In the article "The court is free to listen to both sides or not." The provision is included. This provision distinguishes provisional lien proceedings from civil proceedings. In addition, the approximate rule of proof is required for the provisional seizure decision to be made. 258/1 of the EBL. According to the article; The creditor is obliged to show evidence to the court about his receivables and, if necessary, the reasons for the seizure. It is seen that in civil proceedings, the rule of full proof is not required in terms of provisional lien proceedings. Precautionary lien proceedings are subject to simple trial procedure. As a matter of fact, in the decision numbered 2017/1379 K. of the 4th Civil Chamber of the Supreme Court of Appeals, this situation is stated as follows: "It is clear that the provisional attachment request is one of the matters subject to simple trial, but there is no clear regulation stating that the provisional attachment request will be heard in the civil court of peace, and there is no regulation stating that all works subject to simple trial will be heard in the civil court of peace." It is stated as follows.

As we have stated, the creditor who requests a provisional attachment decision must prove approximately his receivables. In the decision numbered 2020/1988 K. of the 23rd Chamber of the Supreme Court of Appeals, "The justification of the first instance court was not deemed appropriate to the characteristics of the concrete case and the scope of the file. Because in provisional attachment requests, it is sufficient to have convincing evidence and documents showing the existence and amount of the receivable, and definitive proof of the receivable is not required." His statements are included. Although it is sufficient to be convinced of the possible existence of the receivable in accordance with Article 257 of the Bankruptcy Law, in order to issue a provisional attachment decision, the creditor must add the information and documents that will form this opinion to his request. The Supreme Court is also of the opinion that a provisional seizure decision should not be given in cases of lack of information and documents. According to the decision of Istanbul BAM 17th HD No. 2020/1810; "The point that should be taken into consideration when making a provisional seizure decision is not to prove the receivable with written evidence, but to present the evidence that will convince the judge about the existence of the receivable. Convincing the existence of the receivable is approximate proof. If there is a legal transaction, the existence of the receivable must be based on a document or a chain of documents. When the concrete request, pass list, vehicle license plates, CD records containing images are evaluated, it is accepted that the convincing evidence stated in the law has been presented, and the provisional provision against collateral is accepted. "While it should have been decided to accept the lien request, it was not appropriate to reject it."

No provisional attachment decision is made for invoice-based receivables. There is a decision numbered 2018/1214 K. of Istanbul BAM 12th Legal Chamber on the subject. According to the relevant decision; "As it is known, the mere issuance of an invoice does not put the person on whose behalf the invoice is issued into debt. The existence and amount of the overdue receivable will be determined by the trial to be held. Since the grounds of appeal put forward for the additional decision regarding the acceptance of the objection and the removal of the provisional attachment decision are not valid, it has been decided to reject the appeal application of the plaintiff / attorney requesting the provisional attachment on the merits."

It should not be forgotten that if there is an invoice agreement between the parties, a provisional lien may also be issued for receivables based on invoices.

PROVISIONAL SEIZURE AND AUTHORIZED COURT

The court competent to make the provisional seizure decision is determined in accordance with Article 50 of the EBL, as referred to in Article 258 of the EBL. Article 50 of the EBL refers to the courts with general jurisdiction in terms of jurisdiction. Therefore, the competent court must be determined in accordance with the general jurisdiction rules.

The competent court is the Civil Court of First Instance. However, it should not be forgotten that the Commercial Court of First Instance will have jurisdiction in terms of commercial cases. For example, in cases of receivables based on checks or promissory notes, the relative court is the commercial court of first instance.

Civil courts of peace are responsible for rent receivables.

If the provisional attachment decision will be requested after the lawsuit is filed, the competent court will be the court where the lawsuit is filed. In this case, special courts such as labor courts and family courts may also issue provisional attachment decisions. However, in practice, it seems that provisional attachment decisions are almost never given for receivables that require trial. The Supreme Court has an exceptional ruling stating that it is appropriate to issue a provisional lien in a case involving a work accident.

PREVENTIVE LIEN CURRENCY - CURRENCY RATIO

In order for a provisional seizure decision to be made, collateral must be deposited by the creditor. Guarantee is listed as one of the conditions for making the decision under Article 259 of the EBL. According to the relevant article; If the creditor requesting a provisional lien proves wrong in the lien, he is responsible for all damages that the debtor and the third party may suffer as a result, and is obliged to give the guarantee written in Article 96 of the Code of Civil Procedure.

Although the law stipulates the obligation to deposit collateral, the collateral rate is not determined. In practice, this rate is generally determined as 15% of the receivable amount. However, there is no harm in the court determining this rate to be higher.

If the receivable is based on a judgment, no guarantee is required. If the receivable is based on a document in the nature of a judgment, it is left to the discretion of the court whether or not collateral is required.

According to Article 281 of the EBL; The judge may issue a provisional seizure decision on the goods that are the subject of the dispositions subject to cancellation, upon the request of the creditor. The need and amount of the guarantee is assessed and determined by the court. However, if the case concerns the value of the disposed goods, a provisional attachment decision cannot be given without providing a guarantee.

CONTENT OF THE PRECAUTIONARY SEIZURE DECISION

According to Article 260 of the EBL, the following points are written in the provisional seizure decision.

1. Name, surname and residence of the creditor and, if necessary, his representative and the debtor,

2. Based on what documents the seizure is imposed and for what amount of receivable,

3. Reason for confiscation,

4. Things to be seized,

5. What the creditor is obliged to compensate for the damage and what the guarantee provided consists of.

Decisions that do not meet the above elements have been seen as grounds for reversal by the Supreme Court. In an exemplary decision of the 23rd Civil Chamber of the Supreme Court of Appeals, "In the concrete case, although the court decided to place a provisional seizure on two separate independent sections belonging to the defendant in the absence of the defendant, with two separate dated decisions, the objection was rejected because it was understood that the reasons in Article 257 of the EBL, explained above, were not understood in a reasoned and auditable manner, and that the decisions did not contain the elements in Article 260 of the EBL." "The interim decision regarding this matter had to be reversed for these reasons." The provision was made as follows.

EXECUTION OF THE PRECAUTIONARY SEIZURE DECISION – DURATION

After the provisional attachment decision is made, the creditor can immediately apply to the enforcement office and have the debtor's assets seized. The competent enforcement office is EBL, Article 261/1. As stated in the article, it is the enforcement office within the jurisdiction of the court that makes the decision.

A period of 10 days has been set for the creditor to apply to the enforcement office. If the creditor does not request the execution of the decision by applying to the enforcement office within 10 days, the provisional attachment decision will be lifted automatically.

In accordance with Article 263 of the EBL, it is possible to release movable goods seized by provisional attachment to the debtor in return for collateral. Accordingly; "The seized goods can be given to the debtor upon request, provided that they are given in money or in kind, and the values ​​of the goods are stored in order to ensure this, or a bond or a movable or immovable pledge or a reliable bank guarantee is shown to be accepted by the enforcement director, and if the goods are seized in the hands of a third party, they can be released to this person by obtaining a commitment bond. The security requested cannot exceed the amount of debt and expenses in any case."

Precautionary seizure decisions are executed in accordance with the provisions regarding the manner in which the seizure will be made in articles 79 to 99.

261. In the last paragraph of the article, the competent enforcement court for complaints regarding the execution of provisional seizure is specified. According to the relevant article; Complaints regarding the execution of the provisional seizure are made to the enforcement court to which the enforcement office that carries out the execution is affiliated.

EFFECT OF THE PRECAUTIONARY SEIZURE DECISION

As we have stated in many places, provisional lien is a protection measure that provides payment assurance to the creditor. For this reason, the provisional seizure has no definite effect. What is meant by the lack of definitive effect is that the provisional seizure does not give the creditor the right to sell. Therefore, after the provisional seizure decision is taken, the creditor must finalize the seizure by carrying out follow-up procedures or filing a lawsuit.

Again, with Article 268, the institution of participation in provisional seizure is regulated. According to the relevant article; If the goods provisionally seized in accordance with Article 261 are seized by another creditor in accordance with this Law or other laws before the provisional seizure turns into a definitive seizure, the creditor holding the provisional lien shall automatically and temporarily participate in this seizure within the scope of the conditions in Article 100. If there is a provisional or executive lien before the lien, no lien, including public receivables, can participate in the lien before the lien.

Finally, it is necessary to mention the last paragraph of Article 268. This paragraph states that the provisional lien is not a priority lien. Therefore, the provisional lien creditor will not have priority over other creditors.

REMOVING PRECAUTIONARY SEIZURE IN EXCHANGE OF SECURITY

According to Article 266 of the EBL; "The debtor may request the court to lift the provisional attachment, provided that he deposits money or a pledge or bond or bond acceptable to the court, or shows a real estate pledge or a reputable bank guarantee. Once the prosecution begins, this authority passes to the enforcement court."

In order to lift the provisional lien, it is necessary to apply to the court that made the decision before the enforcement proceeding, and to the enforcement court after the prosecution is initiated.

OBJECTION TO THE PRESENTATIONAL LIEN DECISION - CASE FOR REMOVAL OF THE PRESENTATIONAL LIEN

What is stated by the objection to the provisional seizure decision is the case for the removal of the provisional seizure decision. As we mentioned above, provisional lien proceedings are carried out according to the simple procedure and in practice it is generally seen that the decision is made based on the file. In order to prevent any loss of rights that may arise from these reasons, the legislator has granted the right of objection to the debtor and some third parties. According to the regulation in Article 265; "The debtor may object to the grounds of the provisional seizure granted without being heard, the authority of the court and the guarantee; the application of the seizure in the seizures made in his presence; otherwise, he may object by applying to the court within seven days from the date of notification of the seizure report."

As can be seen, the right of objection granted to the debtor is limited. The debtor can only object to decisions made in his absence. The reasons for objection are listed as the reasons on which the provisional seizure is based, the authority of the court and its limitation as guarantee. The debtor may object to the provisional attachment decision for the following reasons:

1- A provisional seizure decision has been made contrary to the principles determined by the law in terms of the maturity of the receivable,

2-The receivable must be secured by pledge,

3-The creditor has not provided any or incomplete collateral,

4-The provisional attachment decision has not been given by the competent court.

It cannot be decided to lift the provisional seizure due to objections other than the reasons listed above. In the decision numbered 2015/14544 of the 19th Civil Chamber of the Supreme Court of Appeals, it was stated that "The case is about the objection to the decision of provisional attachment. The claim put forward by the debtor's representative in the petition of objection that the signature of the drawer on the check subject to follow-up does not belong to the representative of the client company and is fake, is not one of the reasons listed in Article 265 of the EBL, and is one of the reasons to be put forward in the negative declaratory suit to be filed, and the case has been opened regarding the provisional seizure." "Since a decision can also be made by the court, the decision to reject the objection that is deemed inappropriate should be approved." It is stated as follows. As can be understood from the decision, if a negative declaratory suit is filed against the bills of exchange, the removal of the provisional attachment can be requested from this court.

The objection period to the provisional seizure decision is 7 days. The starting point of this period varies. Namely; If the seizure is made in the presence of the debtor, the beginning of the period will be the date on which the seizure is made; if it is made in his absence, the date on which the seizure report is notified to him. The objection is made to the court that made the provisional seizure decision.

Third parties whose interests have been violated may also object to the reasons or guarantee on which the provisional seizure is based within seven days from the date of learning about the provisional seizure. Third parties have no right to object to the jurisdiction of the court.

In the article of the law; It is regulated that the objector is obliged to show all the documents on which he bases his petition. The court must conduct the objection review with a hearing. If the hearing is opened and the parties do not appear, the decision can only be made on the basis of documents. As a matter of fact, this situation is stated in the decision numbered 2020/391 K. of Istanbul BAM 14th Legal Chamber; "The procedure for reviewing the objection is regulated in Article 265 of the EBL, and since it is stated in the 4th paragraph of the said article that the court may change or revoke its decision if it deems the objection to be valid after inviting the two parties and listening to the objections, and if neither party comes, it may make a decision by reviewing the documents, the examination of the objection by opening a hearing is accepted as a mandatory procedure by law. Upon the objection petition filed by the third party attorney against the provisional attachment decision, the court shall not send an invitation to the parties, "It is understood that the objection was decided to be rejected as a result of the examination of the file without opening a hearing, and the objection was concluded on the file without complying with the legal obligation to open a hearing, thus the provision of the law regulating the procedure for examining the objection in a mandatory manner was violated." It is stated as follows.

An appeal may be filed against decisions made upon objection. The decisions of the regional court of justice upon objection are final. Additionally, filing for appeal does not stop the execution of the seizure decision.

FINALIFICATION OF PRECAUTIONARY SEIZURE

Before Filing a Lawsuit or Initiating Enforcement Proceedings

In this case, the creditor must pursue (execution or bankruptcy) or file a lawsuit within 7 days from the enforcement of the seizure. Otherwise, the provisional lien becomes invalid. There is another issue that we find useful to mention here. As it is known, after the application of the provisional seizure, the creditor must initiate the proceedings at the authorized enforcement office in order to pursue enforcement proceedings. Previously, the Supreme Court of Appeals considered the enforcement office in the vicinity of the jurisdiction where the provisional seizure decision was made to be competent in terms of enforcement proceedings. However, this opinion was changed with the decision of the General Assembly of the Supreme Court of Appeals dated 15.1.2014 and numbered 2014/5 K. The relevant decision is as follows.

"The dispute is about whether the enforcement office of the place where the court that made the provisional seizure decision is located is authorized for enforcement proceedings. Article 12 of the Civil Code states that after the provisional seizure, the receivables lawsuit, which is the basis of the seizure decision, can be filed in the court that made the seizure decision. Enforcement proceedings could be initiated in the enforcement office located in the place that made the provisional seizure decision, by sending Article 50 of the EBL. However, Since there is no equivalent of Article 12 of Civil Code No. 1086 in Civil Code No. 6100, after the implementation of the provisional attachment decision, the enforcement office of the place where the court that made this decision is located will not become competent just because the provisional attachment decision was made in the court of that place. The authority of the enforcement office must be determined in accordance with the general jurisdiction rules of the Civil Code. It is unauthorized in terms of this proceeding. Since the enforcement proceedings are initiated in an unauthorized enforcement office, the acceptance of the jurisdictional objection is appropriate."

After the creditor initiates enforcement proceedings, a payment order is sent to the debtor. If the debtor does not object to the payment order within 7 days in pursuits through general lien, the proceeding becomes final and the provisional lien turns into a final lien. If the debtor objects to the payment order, the creditor must take action within 7 days to ensure that this objection is dismissed. For this, the creditor must either file a objection cancellation lawsuit within 7 days or proceed with the removal of the objection. When a lawsuit for cancellation of the objection is filed, the provisional lien continues until the end of the case and if the creditor wins the case, the temporary lien turns into a definitive lien. The same procedure applies for final removal of the objection. If the debtor does not object to the payment order within the prescribed period, or if his objection is definitively removed by the enforcement court or annulled by the court, the provisional seizure automatically turns into a final seizure. If the enforcement court rejects the request to remove the objection, the creditor must file a lawsuit within seven days from the date of announcement or notification of the decision.

The creditor may also file a lawsuit against the debtor in general courts within 7 days. In this case, the provisional lien continues until the conclusion of the case. If the creditor wins the case, he must pursue enforcement with a judgment. "If the provisional lien has been placed while the receivable case is being heard in court or if the creditor has filed a lawsuit in court in accordance with the first paragraph, the creditor is obliged to request follow-up within one month from the notification of the judgment to be given on the merits by the court." EBL 264/3

In Precautionary Seizures Placed After Lawsuit or Proceedings

In this case, the creditor does not need to initiate a new enforcement proceeding. However, if the debtor objects to the payment order, action must be taken according to the periods stated above. "In enforcement proceedings, if the debtor objects to the payment order, this objection is immediately notified to the creditor. The creditor is obliged to request the removal of the objection from the enforcement court within seven days from the date of notification or to file a lawsuit in court. If the enforcement court rejects the request to remove the objection, the creditor must file a lawsuit within seven days from the date of announcement or notification of the decision." EBL 264/2

Precautionary seizure decisions taken while the case is pending continue until the case is concluded. Once the case is concluded, the creditor must follow up with a judgment within 1 month.

According to EIB 264/4; In any case; If the creditor passes these deadlines or gives up his lawsuit or request for follow-up, or if the request for follow-up is dropped after the legal periods have passed, or if the case file is removed from the proceedings and the case is not renewed within one month, or if he is found to be wrong in his case, the provisional lien becomes null and void and if the relevant parties wish, it is notified to the necessary parties.

COMPENSATION CASE DUE TO PRECAUTIONARY LIEN

In accordance with Article 259 of the EBL, the creditor is responsible for all damages suffered by the debtor and third parties due to provisional attachment. If the debtor has been damaged due to provisional attachment, he can file a lawsuit for compensation in general courts. This lawsuit can also be filed in the court that made the provisional seizure decision, apart from the general competent courts.

The case is subject to a two-year, and in any case ten-year, statute of limitations.

The plaintiff's damages are primarily covered by the guarantee.

Liability for compensation is strict liability. However, as we mentioned, the debtor must be damaged. Apart from this, there must be a causal link between the damage and the provisional lien.