1. What is a provisional attachment order?

A provisional attachment is a type of legal precautionary measure imposed, based on a court decision, on the movable and immovable assets owned by a debtor who owes a monetary debt, in order to prevent the debtor from concealing or transferring assets. Once the court decision is enforced through the enforcement office, the creditor effectively secures its monetary claim through the provisional attachment.

2. Conditions Required for Issuing a Provisional Attachment Order

The conditions for a provisional attachment are regulated under Article 257 of the Enforcement and Bankruptcy Law (“Law”). According to the Law, in order for a provisional attachment order to be issued, it is sufficient that:

• There is a monetary claim arising from a validly established agreement,

• The monetary claim is not secured by a pledge,

• The due date of the monetary claim has arrived.

However, for a monetary claim that has not yet become due, the following conditions must be met:

• There must be a monetary claim arising from a validly established agreement,

• The monetary claim must not be secured by a pledge,

• The existence of a circumstance creating a risk due to delay must be approximately proven.

The Law provides examples of circumstances creating such a risk, including the debtor having no fixed place of residence, intending to hide assets, engaging in acts aimed at concealing assets, or carrying out fraudulent transactions that would prejudice the creditor’s rights.

Although the criteria for provisional attachment are clearly regulated, in practice, particularly in loan agreements executed with banks, it is observed that even where mortgages have been established over the debtor’s immovable properties or mortgage-backed debt instruments and income certificates have been issued, creditors may still obtain provisional attachment orders from courts and impose provisional attachments over all assets of the debtor in case of non-payment.

3. Is a provisional attachment order prohibited for claims secured by a pledge?

No. A provisional attachment order may be granted in certain circumstances.

A pledge (generally a mortgage in daily practice) constitutes a strong form of security in rem. A creditor whose claim is secured by a pledge has priority and is entitled to collect its claim before other creditors. Therefore, the Law generally does not allow a creditor holding such a security to request a provisional attachment.

Where a monetary claim is secured by a pledge, enforcement proceedings should primarily be initiated through the realization of the pledge.

However, if the pledge does not secure the entire claim, a provisional attachment may be requested for the unsecured portion of the claim. For example, if the value of the established mortgage is TRY 50,000 while the total claim amounts to TRY 80,000, a provisional attachment may be requested for the remaining TRY 30,000 that is not secured by the pledge.

It should be emphasized that, in such cases, enforcement proceedings through the realization of the mortgage should first be initiated.

4. Can a provisional attachment order be issued over the assets of guarantors?

The Court of Cassation has stated that if a claim is secured by a pledge of movable property subject to delivery or by a pledge of receivables, the guarantor cannot be pursued before the pledge is realized.

However, the Court of Cassation has also ruled that the guarantor may be pursued before the realization of the pledge in cases where:

• It is determined by the court in advance that the claim cannot be fully satisfied through realization of the pledge,

• The debtor has become bankrupt,

• A concordat period has been granted to the debtor.

Nevertheless, in order to prevent recourse against the guarantor, the pledge must also have been established as security for the guarantor’s obligations; in other words, the debt arising from the guarantee must itself be secured by the pledge.

Therefore, if the guarantor’s obligation is not secured by a pledge, a provisional attachment order may be issued over the assets of the guarantor.