3. THE COMPETENT AND AUTHORISED COURT FOR THE OBJECTION TO ATTACHMENT
The objection to the precautionary attachment decision must be made to the court that decided on the precautionary attachment. The review must also be conducted by the same court and with a hearing. These points are emphasised in the decisions of the Court of Cassation below;
“Izmir 1st Commercial Court of First Instance, except in the event that a lawsuit has been filed regarding the receivable subject to the precautionary attachment pursuant to Article 264 of the EBL, the objection to the precautionary attachment decision will be made to the court that issued the precautionary attachment decision within the framework of Article 265 of the EBL and will be decided by that court within the scope of Article 265 of the EBL, in the concrete case, the … 2. Civil Court of First Instance, which made the interim attachment decision in the concrete case, decided to accept the objection with the file numbered 2015/204 different business, and a decision of lack of jurisdiction and lack of jurisdiction cannot be made by the court examining the objection, and the competent court to decide on the removal or modification of the interim attachment decision regarding the objection is … 2nd Civil Court of First Instance.
The court accepts or rejects the objection by making an examination specific to the reasons shown.”
In the concrete case, the debtor…Tic. Ltd. Şti. attorney has objected to the jurisdiction of the court, and in this case, the court that will accept or reject the objection by conducting an examination specific to the reasons shown is the … 2nd Civil Court of First Instance that issued the interim attachment decision.”
In another decision, the Court of Cassation drew attention to the necessity of a hearing;
“The request is related to the objection to the precautionary attachment decision. Pursuant to Article 265/last of the EBL, the court should invite both parties to the objection and listen to those who come, and if neither party comes, examine the objection by examining the documents, and if it deems the objection to be valid, it should change or remove the decision, otherwise it should reject the objection, but it was not correct to proceed directly to the examination of the documents without inviting the two parties.”
“In Article 265/1 of the BEC; the debtor may object to the reasons on which the precautionary attachment is based, the jurisdiction of the court and the collateral without hearing the debtor himself, by applying to the court within seven days from the date of the execution of the attachment in the attachments made in his presence, otherwise from the date of notification of the attachment report to him, and in Article 265/3 and paragraph; it is ruled that the court will accept or reject the objection by making an examination specific to the reasons shown.
The previous decision rendered by the court, with the decision of our Chamber dated 15/04/2015, 2014 18576 E-2015/ 5325 K. No. 2014 18576 E-2015/ 5325 K. dated 15/04/2015 of our Chamber, stating that the request is related to the request for the removal of the precautionary attachment decision, it was reversed on the grounds that the objection should be decided by opening a hearing, not on the documents, and in the retrial conducted in accordance with the reversal order, it was not deemed correct to make a positive or negative decision on the objection to the precautionary attachment decision, contrary to both the reversal order of our Chamber and Article 265/3 and paragraph of the BEC, it was not deemed correct to make a new precautionary attachment decision, and for this reason, the decision had to be reversed.”
4. GROUNDS FOR OBJECTION TO ATTACHMENT
The grounds for objection to the precautionary attachment are listed in a limited manner in the Law. The grounds for objection, which are categorised in three groups in Article 265 of the EBL, are stated as objections regarding the grounds on which the precautionary attachment is based, the jurisdiction of the court and the security. However, in practice, there are hesitations about the objections regarding the grounds on which the precautionary attachment is based. Here, we will endeavour to clarify this issue based only on the decisions of the Court of Cassation. In particular, it is controversial whether the objections that the receivable does not exist and that it has been paid will be considered within this scope. Because, if there is no receivable, the existence of the precautionary attachment will be meaningless. Below, the decisions of the Court of Cassation provide examples of which reasons are accepted as valid grounds for objection to precautionary attachment;
In the decision below, the fact that the invoices on which the precautionary attachment was based were subject to objection was accepted as a valid reason for objection to the precautionary attachment and it was decided to lift the precautionary attachment;
“The attorney requesting the precautionary attachment requested a precautionary attachment based on 14 invoices, the request was deemed appropriate and the court issued a precautionary attachment decision. The attorney objecting to the precautionary attachment stated that the invoices on which the precautionary attachment was based were objected with notary notices and requested the removal of the precautionary attachment.
The court ruled to lift the cautionary attachment by stating that the cautionary attachment requestor did not submit the notices sent by the debtor via notary public regarding the invoices and debt to the file while making the request, that if these documents and information were known by the court, the court would not be convinced of the existence of the receivable, and that the situation preventing the formation of an opinion regarding the existence of the receivable was understood upon objection, and it was decided to approve the decision.” [4]
In another decision, it has been stated that the objection to the signature on the cheque cannot be accepted as a ground for objection to the precautionary attachment, and that this objection can only be raised in a negative assessment action;
“The debtor’s attorney, who objected to the precautionary attachment, claimed that the signature on the cheque on which the precautionary attachment was based did not belong to the authorized person of his client company, that no transaction was made by the addressee bank because the signature of the drawer on the cheque and the signatures of the company official in the bank did not match, that the date of issue was falsified, that it was not correct to take a precautionary attachment decision while the existence of the receivable was doubtful, and that the underlying document did not have the characteristics of a bill of exchange, and requested the removal of the precautionary attachment decision.
The lawsuit is related to the objection to the precautionary attachment. The reasons for objection to the precautionary attachment are shown in Article 265 of the EBL, and the issue raised in the concrete dispute is not among the reasons written in the said article. The reasons asserted are among the issues that can only be asserted in a negative declaration case. While the court should have decided to reject the objection to the precautionary attachment by taking into consideration that the plaintiff company may have other representatives, that the issue put forward as a reason for objection to the precautionary attachment requires a comprehensive examination and cannot be examined in such a case, and that it is not possible to decide to accept the request according to the determination made by the non-suiting bank officers, which does not have the quality of evidence before the courts, it was necessary to make a written judgement by ignoring the aforementioned considerations.”
Contrary to the previous decision, in the following Court of Cassation decision, it is decided that the issue of representation with double signature should be accepted as a reason for objection to the interim attachment and the court should reach a conclusion by examining the signature circular;
“The reasons for objection to the precautionary attachment are limited and formal in nature, and no objection can be made to the precautionary attachment decision based on reasons other than this, however, taking into account that the objection that the cheque will not bind the company due to the fact that it has a single signature, as in the case in question, is an objection within the scope of the reasons on which the precautionary attachment is based, the court should take into account both Article 321/3 of the TCC and the signature circulars submitted at the objection stage. Article 321/3 of the TCC and the signature circular submitted during the objection phase, the objection of the company against which a precautionary attachment decision was issued should be evaluated, while the reasoning of the court that this issue will be taken into consideration in the main proceedings has not been deemed appropriate and the decision should be reversed for this reason.”
The request for lifting the interim attachment was rejected on the grounds that the objection that the cheque was paid was not one of the reasons for objection to the interim attachment listed in the law. In the aforementioned decision, the following determination was made;
“In the concrete case, the objector to the precautionary attachment claimed that the debt was paid and that there was no intention to evade the property, and requested the removal of the precautionary attachment, and the court decided to accept the request on written grounds. However, the objection that the cheque has been paid is not one of the grounds of objection listed in the law, but a claim that may constitute the subject of a negative declaration case.”
In another decision, the objections to the signature on the cheque, that the cheque was disposed of without consent, were not considered within the scope of Article 265 of the BEC.
The fact that the receivable subject to precautionary attachment is secured by a pledge is one of the grounds for objection to precautionary attachment. Because, precautionary attachment can only be subject to receivables that are not secured by a pledge.
The point that should be taken into consideration in all these objections regarding the existence of the receivable is the following; the precautionary attachment decision is a decision made in the approximate proof to be made by the creditor. Here, the court has not yet made a judgement on the existence or non-existence of a receivable and reached a definite conclusion. Likewise, it can be said that by limiting the grounds for objection to the precautionary attachment, it can be said that it is intended to prevent the transformation of this application into a judgement that requires an examination on the merits of the main receivable relationship. In particular, this is the reason why the issues that require an examination to be made in another litigation process are not accepted as grounds for objection to interim attachment.
An objection to the precautionary attachment may also be lodged by claiming that the court deciding on the precautionary attachment is not authorised.
Since the precautionary attachment decision must be issued against the collateral to be provided by the creditor, the creditor may object to the precautionary attachment in cases where the creditor has not provided any collateral or the collateral provided is insufficient. The court may also decide to require the provision of collateral or to change the amount or type of collateral.
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