Precautionary Attachment Decision (EBL 257).
Precautionary attachment is the temporary seizure. Of the debtor’s property by a court decision. In order to secure the timely payment of the creditor’s money receivable due.
A precautionary attachment can also be made. Before a lawsuit is filed or proceedings are initiated. If the creditor is concerned that the debt. Will not be paid on time, it may request. The court to temporarily seize the debtor’s property.
Precautionary seizure, like final seizure. Does not authorise the creditor to request a sale. It will not authorise the creditor to request a sale of the precautionarily seized goods before the seizure is finalised.
In the event that the creditor wins the lawsuit filed by the creditor or the proceeding initiated by the creditor is finalised, the precautionary attachment previously made will turn into a final attachment.
CONDITIONS FOR REQUESTING A PRECAUTIONARY ATTACHMENT
The receivable must not be secured by a pledge.
If the receivable is secured by a pledge, it is not possible to request a precautionary attachment.
The receivable must be a money receivable.
As a rule, a precautionary attachment decision can be requested to secure due (due) receivables.
Exception: Conditions for requesting a precautionary attachment for money receivables that are not due (due):
-The debtor’s place of residence cannot be found, is not known,
-Fraudulent transactions by the debtor in order to get rid of its commitments,
-The debtor’s evasion or attempted evasion of the debtor’s goods.
If these cases are proved, a precautionary attachment decision may also be issued for money receivables that are due (not due).
OBTAINING THE DECISION OF ATTACHMENT
In order to impose a provisional attachment on the debtor’s goods in the form of a temporary measure in this way, a decision to this effect must be taken by the court.
If the creditor fulfils the conditions mentioned above, the creditor may apply to the general courts. To obtain a precautionary attachment decision. The creditor must apply to the court with a petition.
If the court finds the creditor’s claim and the reasons for the precautionary attachment put forward by the creditor to be justified, it shall decide on the precautionary attachment of the debtor’s goods. Otherwise, it rejects the creditor’s precautionary attachment request.
***The creditor may directly appeal against the rejection. Of the precautionary attachment request within 2 weeks.
The court requests a guarantee from the creditor in case the creditor is wrong. However:
If the claim is based on a judgement, the creditor is not required to provide collateral.
The claim is based on a document in the nature of a judgement, it is at the discretion of the judge to decide. Whether the creditor should provide collateral or not.
If the receivable is not based on a judgement or a document in the nature of a judgement, the creditor must provide collateral.
APPEAL AGAINST JUDGEMENTS OF ATTACHMENT
As a rule, the debtor cannot directly appeal the interim. Attachment decision issued by the general courts. However, the debtor may challenge. Competence of the court which issued the interim. Attachment order without hearing him/her.
-The jurisdiction of the court,
-The amount of the deposit,
-Reasons on which the precautionary attachment is based.
The party may object to the precautionary. Attachment decision by applying to the court that issued the decision. Within 7 days from the implementation of the counter. Attachment (if he/she is present in the attachment) or notification. Third parties whose interests are damaged. May also object to the precautionary attachment decision. However, third parties cannot object to the jurisdiction of the court. If the objection of the debtor is rejected. He/she may apply to the legal remedy of appeal. The decisions rendered thereupon are final.
FULFILMENT OF AN ATTACHMENT ORDER
After the precautionary attachment decision is issued, the creditor must request the execution office to fulfil this decision. The creditor must apply to the enforcement office within 10 days starting from the date of the interim attachment decision and request the execution of the interim attachment decision. Otherwise, the precautionary attachment decision is automatically cancelled.
EFFECT OF PRECAUTIONARY ATTACHMENT
Precautionary attachment is the temporary attachment. Of the creditor’s receivable of an outstanding money receivable through the court. Thus, the creditor’s receivable will be secured. The precautionary attachment does not authorise the creditor to request. A sale unless it turns into a final attachment. The creditor must first initiate a proceeding. Or file a lawsuit against the debtor in order to finalise the provisional attachment.
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