A provisional seizure is the temporary legal seizure of a debtor’s property to secure a creditor’s monetary claim. If a creditor has suspicions that the debtor will not pay their debt on time, they can first seize their movable and immovable property.
For a provisional seizure to be granted, the receivable must be due and not secured by a lien. For receivables that are not due, a provisional seizure can be granted if the creditor can prove that the debtor does not have a specific place of residence, is preparing to conceal or hide their property to avoid their obligations, or that there are signs that the debtor is preparing to flee.
In a divorce case, even if the compensation claims related to the divorce case have not yet been decided, a provisional seizure may be granted for an undue receivable under certain conditions under the Enforcement and Bankruptcy Law.
As can be seen in the Supreme Court decision: After the preliminary injunction was lifted, the plaintiff requested a provisional lien on the defendant’s rights and receivables in the jockey club and other collateral, stemming from the ganyan dealership, to secure compensation likely to be awarded in his favor as a result of the divorce case. This request was rejected by the court on July 17, 2013, on the grounds that “there is no outstanding monetary claim.” It is true that the plaintiff’s claims for compensation, which are accessory to the divorce case, have not yet been decided. According to the Enforcement and Bankruptcy Law, a provisional lien may be requested for an outstanding debt under certain conditions. (I.C. Law, Art. 257). The person requesting a provisional lien is liable for all damages incurred by the debtor and a third party if the lien is proven wrong and is obligated to provide collateral. (I.C. Law, Art. 259) If the claim is based on a court order, collateral is not required. Therefore, while it is possible to request collateral without assessing whether the provisional lien request is based on just cause, rejecting the request on the stated grounds is not considered appropriate. RELATED COURT OF APPEALS DECISION:
Court of Appeals, 2nd Civil Chamber, Case No: 2013/22392, Decision No: 2013/26052
“During the proceedings of the divorce case between the parties, the court issued a decision dated July 11, 2013, regarding the “lifting of the provisional injunction” and the subsequent decision “rejecting the request for provisional attachment,” which was subsequently objected to. The plaintiff appealed the additional decision dated October 3, 2013, regarding the “rejection of the objection” and the documents were read, considered, and considered as necessary:
1- The provisional injunction, issued pursuant to Article 389 of the Code of Civil Procedure upon the plaintiff’s request, was lifted at the preliminary review hearing on July 11, 2013, following the defendant’s objection. This decision regarding the lift was made in the face of the plaintiff’s attorney.” Upon objection to an interim injunction decision, a legal remedy may be filed against the decision rendered on the objection. (HMK Art. 394/5) The period for filing a legal remedy is the period stipulated by law for the relevant legal remedy. Upon objection to the interim injunction decision, the court’s decision to lift the interim injunction decision was rendered directly to the appellant. In this case, there is no need for separate notification of this decision. The plaintiff did not file a legal remedy against the supplementary decision dated July 11, 2013, within the fifteen-day period. In this case, since the period for filing a legal remedy against the decision rendered on the objection to the interim injunction had expired, the plaintiff’s appeal petition should have been rejected in this regard.
2- Regarding the plaintiff’s appeal against the decision dismissing the interim attachment request; a) After the interim injunction was lifted, the plaintiff requested a provisional lien on the defendant’s rights and receivables in the jockey club and other securities arising from the ganyan dealership, in order to secure compensation likely to be awarded in his favor as a result of the divorce case. This request was rejected by the court on July 17, 2013, on the grounds that “there is no due and accrued monetary claim.” If the interim lien request is rejected, the creditor may pursue legal action. (I.C.I.F.C.Art. 258/3) The fact that the legal remedy provided for in the provision refers to the appeal is explained in the Government’s justification for Law No. 4949. Therefore, upon objection to a decision that is open and open to appeal, it is procedurally impossible for the court that issued the decision to review the merits and reject the objection. In this regard, the court’s decision dated 03.10.2013 regarding the “rejection of the objection” made upon the objection against the decision to reject the provisional attachment request is a decision made outside the court’s authority and duty, and it was decided that this decision should be overturned and abolished, and the objection against the decision to reject the provisional attachment request should be considered as an appeal and reviewed.
b) It is true that the plaintiff’s compensation claims, which are accessory to the divorce within the divorce case, have not yet been resolved. According to the Enforcement and Bankruptcy Law, a provisional seizure may be requested for an outstanding debt under certain conditions. (Article 257 of the Preliminary Law) The person requesting the provisional seizure is liable for all damages incurred by the debtor and a third party if the seizure is proven wrong and is obligated to provide security. (Article 259 of the Preliminary Law) If the receivable is based on a court order, no security is required. Therefore, while it is possible to request security without assessing whether the provisional seizure request is based on just cause, rejecting the request on the stated grounds is not considered appropriate.
RESULT: It was decided by majority vote that the additional decision dated 03.10.2013 regarding the “rejection of the objection” given upon the objection to the decision to reject the provisional attachment request for the reason stated in subparagraph (a) of article (2) above be reversed and REMOVED; the decision dated 17.07.2013 regarding the rejection of the plaintiff’s provisional attachment request be REVERSED for the reason stated in subparagraph (b) of article (2) above; the plaintiff’s appeal against the decision dated 11.07.2013 regarding the removal of the provisional injunction be REJECTED for “status of limitation” for the reason stated in subparagraph (1) above; and the advance appeal fee be returned to the person who paid it. 12.11.2013 (Tuesday).