Attachment

Types of Attachment: Final, Provisional and Precautionary Attachment

The article discusses three types of attachment:

• Kesin haciz
• Tamamlama haczi
• Additional attachment
• Provisional attachment
• Precautionary attachment

Kesin Haciz

When attachment is referred to, it is essentially final attachment that is meant. As a rule, the debtor’s assets are attached until the claims of the creditor or creditors are satisfied. However, where an attachment already made does not cover the claim, further attachments are made. Within the scope of final attachment, the Law provides for two types of attachment:

• Supplementary Attachment (Art. 139): This is the attachment, of the enforcement officer’s own motion, of other assets of the debtor where the creditor or creditors could not be satisfied because the enforcement officer misjudged the value of the assets previously attached or because those assets were sold at a low price.
• Additional Attachment (Art. 100/II): This is the attachment made at the request of one or more creditors where, as a result of other creditors participating in the attachment, the assets previously attached for one creditor are insufficient to cover the claims of all the creditors.

Provisional Attachment (EBL Art. 69/I)

Where a decision on the provisional removal of the objection is given, the creditor may request provisional attachment. Provisional attachment is carried out in accordance with the provisions on final attachment; however, the creditor holding a provisional attachment may not request a sale. Provisional attachment differs from precautionary attachment. It is provided only for the case of provisional removal of the objection, whereas precautionary attachment, as an interim measure of legal protection, has a wider scope.

Precautionary Attachment

Precautionary attachment is a temporary legal protection that enables the debtor’s assets to be seized by court order in order to secure the outcome of existing or future enforcement proceedings concerning monetary claims.

Like provisional attachment, precautionary attachment is, as a rule, carried out in accordance with the provisions on final attachment, save for the special provisions set out in the law; however, the creditor who has obtained precautionary attachment may not request a sale either.

Comparison of types of attachment

Request for Attachment, Time Limit for Requesting Attachment and Execution of Attachment

Haciz Talebi

In order to request final attachment, the enforcement proceedings must have become final. However, even after the proceedings have become final, the enforcement office cannot carry out the attachment of its own motion; a request by the creditor is required. Once the proceedings have become final, the creditor requests attachment from the enforcement office either in writing or orally, to be recorded in minutes. Together with this request, the creditor must pay the costs required for the attachment (Art. 59 of the Enforcement and Bankruptcy Law). In order to request attachment, it is not necessary to wait for the debtor to make a declaration of assets (Art. 78/1 of the Enforcement and Bankruptcy Law).

The time limit for requesting attachment is one year from service of the payment order. If attachment is not requested within the time limit, or if a request for attachment is withdrawn and not renewed within one year, the enforcement file is removed from the active docket.

If an objection to the payment order has been raised, the time elapsing from the date on which the creditor applied to the enforcement court for removal of the objection or brought an action for annulment until these decisions become final, or, if the parties have concluded an instalment agreement at the enforcement office, the time elapsing until breach of the instalment agreement, is not taken into account in calculating this period (EBL Art. 78/11). If the creditor fails to request attachment in time, or withdraws the request for attachment and does not renew it within the one-year period, the enforcement file is closed (EBL Art. 78/4). Here, only the file is closed; the enforcement proceedings do not come to an end. The creditor may therefore renew the closed enforcement file and request attachment on the same file. In that case, only the creditor’s renewal request is served on the debtor. In addition, in enforcement proceedings without a judgment, a fee is collected again from the debtor upon the renewal request; however, these fees and expenses are not imposed on the debtor even if the proceedings prove unjustified at the end (EBL Art. 78/5).

Competent Enforcement Office

As a rule, the enforcement office competent for attachment is the enforcement office of the place where the proceedings are conducted. However, if the assets to be attached are located somewhere other than the place of the enforcement office conducting the proceedings, the competent enforcement office delegates the attachment to the enforcement office of the place where the assets are located. In that case, complaints relating to the attachment are resolved by the enforcement court to which the delegated enforcement office is attached (Art. 79/II). However, this provision on delegation does not apply to assets registered in an official registry or to the attachment of receivables and wages. Assets registered in an official registry may also be attached directly by the enforcement office conducting the proceedings by having the attachment entered in their registration. For the attachment of salaries and wages, Arts. 355 – 356 apply. The jurisdiction of the enforcement office is mandatory. Even if the parties do not object, jurisdiction is taken into account ex officio.

Carrying Out the Attachment

The enforcement officer must carry out the attachment within three days of the request for attachment (EBL Art. 79/1). However, an attachment carried out after this period is also valid. Where the attachment is delayed without an acceptable reason, the liability of the State may be pursued on account of the fault of the enforcement officer. Holidays and suspension periods must be taken into account in carrying out the attachment. If the debtor is present at the place of attachment, it is carried out in his or her presence. If the debtor is not at that place but can be found immediately, he or she is sought; if the debtor cannot be found at the place of attachment or cannot be found immediately, the attachment is carried out in his or her absence. Prior notification of the attachment to the debtor is not required. If the debtor pays the debt during the attachment, the attachment is not carried out. Apart from this, the debtor cannot prevent the attachment.

The officer carrying out the attachment assesses the value of the attached asset (Art. 87). Only assets covering the debt are attached according to the valuation. If the officer carrying out the attachment realises that the debtor is concealing money, securities, gold or silver or other valuables on his or her person and the debtor refuses to hand them over, the enforcement officer may use force against the debtor’s property or person. As regards the use of force, all law enforcement forces are obliged to assist the enforcement officer and carry out his or her orders upon a written request. In villages, the village headmen are also obliged to carry out the orders of the officer carrying out the attachment (Art. 81). Otherwise, these persons are punished (Art. 357).

Attachment Report and the 103 Notice

Where the attachment of movable or immovable property is concerned, the enforcement officer draws up an attachment report on site. The content of the report is set out in EBL Art. 102. If the debtor has no attachable assets, this report has the effect of a final certificate of insolvency; if the attached assets are insufficient to cover the claim, it has the effect of a provisional certificate of insolvency.

It is not mandatory to serve a copy of the attachment report on a creditor or debtor who was not present during the attachment. However, the creditor and the debtor may request a copy of this report from the enforcement office (EBL Art. 8/3). Furthermore, although the enforcement office is not obliged to serve the report, it sends a notice to a creditor or debtor who was not present during the attachment and for whom there is no person competent to receive service under the Notification Law, inviting them to examine the report within three days. In practice, this is called the 103 notice. The attachment is valid even if no notice is sent. The creditor may request a sale without having received the notice, but no sale may take place unless the notice has been sent to the debtor. Even where the attachment is carried out by delegation, if the creditor or debtor is outside the jurisdiction of the enforcement office sending the notice, the three-day period is extended in accordance with Art. 90 of the Code of Civil Procedure.

Subject Matter of Attachment: Attachment of Movable and Immovable Property

The subject matter of attachment consists of the debtor’s movable and immovable property and the assets, receivables and rights held by third parties. The enforcement officer may attach only those assets of the debtor that are attachable (permissible). The discretion to assess whether the attachment of the debtor’s assets is permissible lies with the enforcement officer. If the enforcement officer does not exercise this discretion in a manner appropriate to the nature of the specific case, the interested parties may file a complaint. Assets whose attachment is not permissible or only partly permissible will be discussed separately below.

• Movable property
• Immovable property
• Usufruct
• Company shares
• Assets and receivables held by third parties

Attachment of Movable Property

The enforcement office attaches the debtor’s movable property on site, makes a valuation and records it in the attachment report. Having attached movable property, the enforcement office is obliged to take measures for its safekeeping. However:

Where property belonging to the debtor is attached while in the possession of a third party, the attached property is, with the third party’s consent, left with the third party as custodian. Otherwise, the enforcement office must take that property into safekeeping. The debtor’s power of disposal over attached movable property is restricted. Acts of disposal carried out by the debtor over such assets are invalid to the extent that they infringe the creditor’s rights arising from the attachment.

Attachment of Immovable Property

The attachment of immovable property is likewise carried out on site and recorded in the attachment report. Thereafter, the enforcement office notifies the land registry office that the immovable property has been attached and of the amount of the claim for which the attachment was made. The attachment of immovable property also extends to its proceeds and benefits. However, the attachment of immovable property does not prejudice the rights of creditors holding a pledge over it.

The attachment of immovable property also covers its proceeds and benefits. The enforcement office also notifies the attachment to holders of pledge rights over the immovable property and to tenants. In its notification to tenants, they are ordered to pay future rent to the enforcement office.

The attachment of immovable property does not remove the debtor’s power of disposal over it. However, a third party who acquires the attached immovable property from the debtor acquires it subject to the attachment. If the debtor fails to pay the debt that is the subject of the enforcement proceedings, the attached property is sold as though it were still part of the debtor’s assets, and the proceeds are paid to the creditor.

Attachment of Usufruct and Company Shares

Attachment of Usufruct

Under the provisions of the Turkish Civil Code, if the usufruct does not have to be exercised personally by the right holder, such usufructs may be transferred to another person. Usufructs that need not be exercised personally by the right holder may therefore also be attached. In that case, the enforcement office notifies the attachment to the relevant third parties whose addresses are known (the holders of bare ownership). In the attachment of a usufruct, the subject matter of the attachment is the proceeds, profit shares, fruits and due (matured) rents of the thing subject to the usufruct.

Hisse Haczi

In joint stock companies and partnerships limited by shares whose capital is divided into shares, where share certificates exist in respect of the shares held by the debtor in the company, those share certificates are treated as movable property and are attached in the same way as movable property.

Company shares not represented by share certificates (shares in general partnerships, ordinary limited partnerships, limited liability companies and cooperatives) are attached in accordance with Article 94 of the Enforcement and Bankruptcy Law and the relevant provisions of the Turkish Commercial Code.

Under the provisions of the Turkish Commercial Code, for as long as the company continues, a partner’s personal creditor cannot attach the partner’s share in the company; however, the creditor may have attached the share of profits accruing (or to accrue) to that partner according to the company’s balance sheet.

In general partnerships and limited partnerships (partnerships of persons), the partner’s personal creditor may have the partner’s share of profits in the company attached. If the claim cannot be satisfied from that share of profits, the creditor may request the liquidation of the company and also request the attachment of the share that will accrue to the debtor partner as a result of the liquidation.

In limited liability companies, the partner’s personal creditor may, in addition to the partner’s share of profits and liquidation share in the company, have the partner’s share (holding) in the company attached.

In cooperatives, the partner’s personal creditor may have attached only the amount accruing to the partner’s share from the interest and income-expenditure surpluses belonging to the partner, and the share that will accrue to the partner in the event of the cooperative’s liquidation.

What the partner’s personal creditor may have attached

The share attachments described above are notified to third parties whose addresses are known (the company or cooperative) and to the other partners. It is requested that the interest, profit share and liquidation share payable to the debtor partner be paid to the enforcement office. Where the debtor’s profit share and liquidation share are attached, a garnishment notice may also be sent to the company or cooperative under Article 89 of the Enforcement and Bankruptcy Law.

As regards the attachment of bare shares in joint stock companies: where no share certificate or interim certificate has been issued for shares in a joint stock company, the debtor’s shareholding in the company may be attached by the enforcement office by service on the company. Entry of this attachment in the company’s share register is mandatory; however, the attachment is deemed to have been made on the date of service on the company even if it has not been entered in the share register. The attachment is notified by the enforcement office to the Trade Registry for registration. In that case, any transfer of the attached shares is null and void to the extent that it infringes the creditor’s rights.

Where the shares held by the debtor in the company are represented by share certificates or interim certificates, they are attached in the same way as movable property. Upon request, the attachment is entered in the share register.

Attachment of Assets and Receivables Held by Third Parties

The debtor’s property held by a third party and the debtor’s receivables from a third party may also be attached. Examples of the debtor’s property held by a third party include property lent to third parties for use and property kept in bank safe-deposit boxes. Examples of receivables from third parties include money held in a bank, rent receivable from a tenant, money payable to the debtor under a contract, and money lent by the debtor to third parties. Not only the debtor’s existing receivables from third parties but also future receivables may be attached. However, for future receivables to be attachable, there must at least be an underlying legal relationship indicating that the receivable will arise.

“89 Attachment” and Attachment of Salaries and Wages

The attachment of the debtor’s property and receivables held by third parties is governed by Article 89 of the Enforcement and Bankruptcy Law. For this reason, this type of attachment is referred to in practice as an “Article 89 attachment”. Although the debtor’s salary and wage claims also constitute claims against third parties, Article 89 of the Enforcement and Bankruptcy Law does not apply to their attachment. A simpler procedure is provided for the attachment of salaries and wages in Article 355 et seq. of the Enforcement and Bankruptcy Law. Accordingly, the enforcement office notifies the employer obliged to pay the debtor’s salary or wages that the debtor’s salary has been attached. It warns the employer to state within seven days whether the debtor receives a salary or wages from it and, if so, the amount, and to deduct the attached portion and pay it to the enforcement office. The employer is also informed that, if it fails to pay, the amount concerned will be treated as a debt owed by it and that property of that value will be attached and paid to the creditor. If the employer does not deduct the attached amount from the debtor’s salary or wages and pay it to the enforcement office, the employer’s assets sufficient to cover that amount are attached and sold, and the proceeds are paid to the creditor.

The debtor’s property and receivables held by third parties, other than salary and wages, are attached under Article 89 of the Enforcement and Bankruptcy Law. This attachment is likewise made at the creditor’s request and recorded in the attachment report. The property or receivable held by the third party is deemed attached as soon as it is recorded in the attachment report.

Garnishment Notices

The garnishment notices sent to the third party are described in the article in the following order:

1. Birinci haciz ihbarnamesiThe third party may object to the enforcement office within seven days of service.
2. Second garnishment noticeSent if no objection is made to the first notice; an objection may be made within seven days of service.
3. Third garnishment noticeWithin fifteen days of service, the debt must be paid, the asset must be delivered or an action for a negative declaratory judgment must be brought.
4. Dava belgesinin teslimiThe document showing that an action for a negative declaratory judgment has been brought must be submitted to the enforcement office within twenty days of service.

First garnishment notice: upon the creditor’s request, the enforcement office notifies the third party that the receivable which the judgment debtor holds against it, or the asset of the judgment debtor in its possession, has been attached, and that any payment made to the judgment debtor will not be valid (and likewise that the asset must be delivered to the enforcement office). This notice sent to the third party is called the “first garnishment notice”. By this notice, the third party is also warned that, if it does not owe the judgment debtor a debt as claimed by the creditor or does not hold any asset of the judgment debtor, it may object to the enforcement office within seven days of service of the garnishment notice, failing which the asset will be deemed to be in its possession and the receivable will be deemed to be owed by it. The next stage of the proceedings depends on the conduct of the third party on whom the first garnishment notice has been served, and various possibilities arise in this case. These possibilities are;

• If the third party, within the time limit, notifies the enforcement office of the enforcement debtor’s receivable from it or of the enforcement debtor’s property in its possession and delivers the property or pays the debt, the proceedings against the third party come to an end.
• If the third party objects to the garnishment notice within the time limit, stating that it owes no debt to the enforcement debtor or holds no property of the enforcement debtor, the proceedings can no longer be continued against the third party. In that case, the third party’s statement must be truthful. Otherwise, the creditor may apply to the enforcement court for the third party to be punished for making an untrue statement. The creditor may also bring an action for damages against the third party for compensation of the loss suffered as a result of the statement.
• If the third party neither objects to the first garnishment notice within seven days nor pays the debt, the debt is deemed to be owed by the third party and the property to be in its possession. In that case, a “second garnishment notice” is sent to the third party.

Second garnishment notice: By this notice, the third party is informed that it did not object to the first garnishment notice within the time limit and that, for this reason, the debt is deemed to be owed by it and the property to be in its possession. In this notice, too, just as in the first garnishment notice and on the same grounds, the third party is warned that it may object to the enforcement office within seven days of service of the notice, failing which it will become final that the debt is owed by it and the property is in its possession. The possible courses of conduct of the third party receiving the second garnishment notice are the same as for the first garnishment notice. If the third party does not object to the second garnishment notice either, and does not pay the debt or deliver the property, it becomes final that the debt is owed by it and the property is in its possession, and a “third garnishment notice” is then sent to the third party.

Third garnishment notice: By this notice, the third party is warned that, because it did not object to the second garnishment notice, it has become final that the debt is owed by it and the property is in its possession; that within fifteen days of service of the third garnishment notice it must pay the debt to the enforcement office or deliver the property, or within the same period bring a negative declaratory action against the creditor; that, if it brings a negative declaratory action, it must submit to the enforcement office, within twenty days of service of the third garnishment notice, a document showing that it has brought the action; and that otherwise the property will be taken by force or it will be compelled to pay the debt. If the third party pays the debt or delivers the property within the time limit, the proceedings against it come to an end. Apart from this, two possibilities arise following service of the notice on the third party. These possibilities are:

• The third party on whom the third garnishment notice has been served may, within fifteen days of service, bring a negative declaratory action against the creditor before the courts of general jurisdiction. If the document showing that the negative declaratory action has been brought is submitted to the enforcement office within twenty days of service of the third garnishment notice, the proceedings cannot be continued against the third party until the judgment given in the negative declaratory action becomes final. Delivery to the creditor of the document showing that the action has been brought is a condition for the proceedings not being continued; the mere bringing of a negative declaratory action is not sufficient to achieve this result. In this action, the third party bears the burden of proving that it does not owe a debt to the enforcement debtor. As a result of this action:

• If the third party neither brings a negative declaratory action within the time limit running from the date of notification nor pays the debt, the proceedings continue against it. A third party compelled to pay the debt who has paid the debt subject to the proceedings although it in fact owed nothing to the enforcement debtor may bring an action for unjust enrichment against the debtor. Furthermore, if the creditor who caused the garnishment notice to be sent to the third party acted in bad faith, it is also possible to bring an action for restitution against that creditor.

Third-Party Ownership Claims and Ownership Actions in Attachment

The creditor is satisfied from the assets belonging to the debtor. However, an asset belonging to the debtor may sometimes be in the hands of a third party, just as an asset belonging to a third party may be in the hands of the debtor. Even where this is not the case, the creditor may assert that an asset held by a third party belongs to the judgment debtor, or the third party may assert that an asset held by the judgment debtor belongs to it. The enforcement officer has no means of knowing whether the asset in question actually belongs to the judgment debtor. In such cases, whether the asset we have referred to belongs to the debtor is disputed. As we also noted when explaining the principle of order in attachment, the debtor’s disputed assets may also be attached. In that case, depending on the circumstances, the creditor, the debtor or the third party must be afforded the right to be heard. This is because, if the attached asset does not belong to the judgment debtor, not only will the rule that the creditor is satisfied from the debtor’s assets be violated, but the third party’s property right or legal certainty will also be violated. In all these cases, the question of to whom the disputed assets belong, or who has the superior right, must be resolved. In enforcement law, this question is resolved through the third-party ownership claim and the ownership action that may be brought in connection with it.

Where, during the attachment of an asset in the hands of the debtor, a third party or the debtor claims to have a right over the attached asset superior to that of the creditor, or where the creditor claims to have a right over an asset held by a third party superior to that of the third party: “third-party ownership claim” is the term used for this.

The subject matter of a third-party ownership claim may be a claim of ownership, or a claim to a right superior to that of the creditor (or of the third party), such as a pledge, usufruct or right of residence.

There are certain differences in the third-party ownership procedure to be followed depending on whether the property subject to the claim was in the possession of the debtor or of a third party at the time of attachment. Indeed, in some cases the debtor and the third party may jointly hold the attached property. The third-party ownership procedure in attachment must be examined separately for each of these three possibilities.

Third-party ownership claim depending on who holds the property

Ownership Action Where the Asset Is in the Hands of the Debtor

When property held by the debtor is being attached, the third party or the debtor may claim that the third party has a right over that property superior to that of the creditor requesting attachment. In that case, the debtor or the third party will have made a third-party ownership claim. A third-party ownership claim does not prevent the attachment of the property. However, the enforcement officer records in the report that there is a third-party ownership claim in respect of the attached property. The third party is not obliged to raise the claim at the time of attachment. It may raise it within seven days of learning of the attachment.

The third-party ownership claim raised by the debtor or the third party is notified to the creditor (and also to the debtor, if only the third party has raised the claim). If the creditor does not object to the third party’s claim within three days, the creditor is deemed to have accepted it. The effect of the third party’s claim being deemed accepted is that the attached property is dealt with in accordance with the third party’s claim. For example, if the third party has claimed ownership, the attachment on the attached property is lifted and the property is handed over to the third party. If the third party has claimed a pledge, the property is deemed to have been attached as pledged property. Once the third party’s claim is deemed accepted, the dispute concerning that claim is resolved without the need for a separate third-party ownership action.

If the creditor objects within three days to the third-party ownership claim of the third party (or of the debtor), the enforcement officer immediately refers the enforcement file to the enforcement court. Depending on the state of the file, the enforcement court decides as a matter of urgency either to continue the proceedings or to postpone (suspend) them against security. At this stage, where there are serious grounds for accepting that the third-party ownership action is being abused solely to delay the sale, the enforcement court rejects the request for postponement of the proceedings. The enforcement court’s decision to continue the proceedings is final and no legal remedy lies against it.

This decision of the enforcement court is pronounced to or served on the third party. Together with this decision, the enforcement court grants the third party a period of seven days from the date of pronouncement or service of the decision to bring a third-party ownership action before the enforcement court.

If the third party does not bring a third-party ownership action within the time limit, it is deemed to have waived its claim. The creditor may therefore request that the proceedings be continued and that the attached property be sold. In other words, a third party that fails to bring a third-party ownership action within the time limit is deemed to have accepted that the property belongs to the debtor.

The third party may, within the time limit, bring a third-party ownership action before the enforcement court of the place where the proceedings are conducted or where the attached property is located. The third-party ownership action is examined and decided by the enforcement court in accordance with the simplified procedure and the general provisions. For this reason, the judgment given at the end of the third-party ownership action constitutes res judicata for the purposes of those proceedings. The Enforcement and Bankruptcy Law provides certain special rules of evidence for this action. These rules are:

• First, in this action the burden of proof lies on the claimant third party. This is because the attached property is in the possession of the debtor, and the presumption of ownership is therefore in the debtor’s favour. In enforcement law, possession in the technical sense is not required for the presumption of ownership to apply; mere physical holding is sufficient.
• The third party must prove how it came to own the property over which the claim is made.
• It is not sufficient for the third-party ownership action to succeed that the third party proves how it came to own the property over which the claim is made. The third party is also obliged to prove how that property came to be in the debtor’s possession.
• The debtor’s acceptance of the third party’s claim during this action has no effect whatsoever against the creditor. However, if the third party later brings an action for unjust enrichment against the debtor, the debtor cannot adduce any evidence contrary to that admission.

If the third party is able to prove its ownership claim in accordance with the rules of evidence we have referred to, the ownership action is upheld. Upholding the ownership action means that the attached asset must be dealt with as declared by the third party. Together with its decision upholding the ownership action, the enforcement court, provided that this has been requested, orders the creditor to pay enforcement compensation of not less than 15% of the value of the attached asset. However, for the creditor (and even, where the conditions are met, the debtor) to be ordered to pay enforcement compensation, the creditor must have acted in bad faith in objecting to the ownership claim.

If the third party fails to prove its ownership claim, the court dismisses the action. Since this decision makes the attachment on the asset subject to the ownership claim final, the creditor may continue the proceedings and request that the attached asset be converted into money. In addition, provided that this has been requested, the third party is ordered to pay enforcement compensation of not less than 20% of the value of the attached asset. For the third party to be ordered to pay enforcement compensation, the enforcement court must have ordered a stay of the proceedings. If the third party has appealed against the dismissal decision before the regional court of appeal or the Court of Cassation, it may request a stay of enforcement against security within the framework of EBL Art. 36.

A third party that has not been given the opportunity to make a third-party ownership claim in the manner described above may, provided that it does not miss the seven-day period from the date on which it learned of the attachment, bring a third-party ownership action until the sale proceeds of the attached property are paid to the creditor. Once the proceeds of the attached property have been paid to the creditor, a third-party ownership action can no longer be brought; however, the third party may bring an action for unjust enrichment against the debtor. If the third-party ownership action was brought before the sale proceeds were paid to the creditor, and the proceeds were paid to the creditor because the enforcement court did not order the suspension of the proceedings, the action continues in respect of the proceeds.

Where the Asset Is Jointly in the Hands of the Debtor and the Third Party

The asset over which the creditor makes an ownership claim may sometimes be held jointly by the debtor and a third party. For example, a debtor father against whom enforcement proceedings are brought and the mother or a child living in the same home; or two persons sharing the same office. Where the asset subject to the ownership claim is held jointly by the debtor and the third party, the asset is deemed to be in the hands of the debtor. Accordingly, the rules we have referred to for the case where the asset is in the hands of the debtor also apply to this scenario.

Where the property over which a third-party ownership claim is made is held jointly by the debtor and a third party, the rules applicable where the property is in the debtor’s possession apply, but a difference arises with regard to the burden of proof. In this case, too, since the presumption of ownership operates in the debtor’s favour, the burden of proof lies on the third party. However, a presumption in favour of the third party is recognised in this action. For property which, by its nature, or by custom and usage, or by reason of profession or trade, clearly belongs to the third party, the burden of proof lies on the creditor (not the third party). For example, if, when attachment is carried out at a home for the father’s debt, a solitaire ring in the house is attached and the mother makes a third-party ownership claim over the ring and brings a third-party ownership action, the mother is not obliged to prove that the ring belongs to her, since a solitaire ring by its nature belongs to a woman. The creditor must prove that the ring belongs to the debtor.

Ownership Action Where the Asset Is in the Hands of the Third Party

If the creditor claims that property held by a third party belongs to the debtor, that property is attached by the enforcement office even if the third party does not accept this claim (claiming ownership, a pledge or another superior right over that property), and the third-party ownership claim is recorded in the attachment report. However, this property is not taken into safekeeping but is left with the third party as custodian. For the property to be left with the third party as custodian, the third party must accept the custodianship.

After attaching the property held by the third party over which the claim is made, the enforcement office grants the creditor a period of seven days to bring a third-party ownership action against the third party before the enforcement court. It should be noted that, in this case, the time limit for bringing the action is granted by the enforcement office, not by the enforcement court.

• If the creditor who has been granted a time limit to bring an action does not bring a third-party ownership action within seven days, the creditor is deemed to have accepted the third party’s claim, and the attachment on the property subject to the claim is lifted or the property is dealt with in accordance with the third party’s claim.
• If the creditor brings a third-party ownership action within seven days, the enforcement court examines and decides the action in accordance with the simplified procedure and within the framework of the general provisions. Unlike the case where the attached property is in the debtor’s possession, here, once the creditor brings a third-party ownership action, the proceedings can no longer be continued (there is no need for the enforcement court to order the postponement of the proceedings). The judgment given in this action constitutes res judicata for the purposes of those proceedings. In this action, the burden of proof lies on the creditor. This is because, in this case, the property over which the claim is made is in the possession of the third party, and the presumption of ownership is therefore in the third party’s favour.

Assets and Rights Wholly and Partly Exempt from Attachment

According to Article 2 of the Constitution, the Republic of Türkiye is a social state governed by the rule of law. Furthermore, Article 17 of the Constitution includes among the fundamental rights and freedoms the right of individuals to develop their material and spiritual existence. So that persons may develop their material and spiritual existence and continue their lives at a minimum level and in a manner befitting human dignity without being dependent on anyone’s assistance, it has been accepted, for humanitarian reasons, that certain property and rights of the debtor may not be attached, in whole or in part. In addition to this exception recognised for natural persons, certain exceptions have also been introduced for legal persons on different grounds. Below, property and rights wholly exempt from attachment will be addressed first, followed by property and rights partly exempt from attachment.

Assets and Rights Wholly Exempt from Attachment

The fact that property, receivables and rights forming part of the debtor’s assets cannot be attached at all sometimes derives from rules of substantive law and sometimes from provisions of enforcement and bankruptcy law. The attachment of certain assets may also be wholly prohibited by special statutory provisions. Under substantive law, property and rights whose transfer to others is prohibited by law cannot be attached. What matters in this context is that the non-transferability derives from statute.

The provision on property and rights wholly exempt from attachment is set out in Article 82 of the Enforcement and Bankruptcy Law. The property and rights not permissible to attach, listed exhaustively in Article 82, are as follows:

• State property and property declared exempt from attachment by special laws,
• All kinds of articles necessary for a debtor whose economic activity depends on physical labour rather than capital to be able to continue their occupation,
• Articles necessary for the debtor and the family members living under the same roof, excluding valuables such as money, securities, gold, silver, precious stones, antiques or ornaments; where there is more than one article used for the same purpose, one of them,
• If the debtor is a farmer, the land, draught animals, means of transport and other accessories and agricultural implements essential for the livelihood of the debtor and their family; if not, the tools, equipment and books necessary for their trade and profession, and the means of transport providing the livelihood of small-scale carriers such as carters, boatmen and porters,
• If necessary for the maintenance of the debtor and their family, one milk-giving water buffalo or cow, or three goats or sheep, as chosen by the debtor, together with three months’ fodder and bedding for them,
• Two months’ food and fuel for the debtor and their family and, if the debtor is a farmer, the seed required for the next harvest,
• If the debtor is a grower of vines, orchards, fruit or vegetables, the vineyard or orchard essential for the livelihood of the debtor and their family and the tools and equipment necessary for that occupation,
• For a debtor whose livelihood depends exclusively on animal husbandry, the number of animals essential for the subsistence of the debtor and their family, together with three months’ fodder and bedding for those animals,
• Life annuities established under the provisions of the Code of Obligations on condition that they are not to be attached,
• Pensions granted to persons disabled in the military and police services of the country, pensions granted to their families by reason of the performance of any of those services, and flight and diving allowances and bonuses paid to air force and submarine personnel,
• Promotion supplements paid to military disabled persons and orphans of martyrs, and monopoly sales shares granted under Law No. 1485,
• Pensions granted by a mutual aid fund or association in cases such as illness, hardship and death,
• Sums paid or payable, as a lump sum or as an annuity, to the injured person or their family as compensation for damage caused to body or health,
• A house appropriate to the debtor’s circumstances,
• Student grants.

The provision of Article 807 of the Civil Code is reserved. The exception in sub-paragraphs 2, 3, 4, 5, 7 and 12 applies only where the debt does not arise from the price of those articles.

Where the value of the property listed in sub-paragraphs (2), (4), (7) and (12) of the first paragraph is high, it is attached and sold, with a portion of the proceeds appropriate to the debtor’s circumstances being left to the debtor to meet their needs.

The enforcement officer assesses whether the attachment of the property or rights sought to be attached is permissible and decides to grant or reject the request.

Provisions in certain other laws on property and rights wholly exempt from attachment:

• Article 5 of the Animal Protection Law (attachment of pets)
• Article 34 of the Electronic Communications Law (internet domain names, and use of frequencies, numbers and lines)
• Movable and immovable property and bank deposits of the Social Security Institution (SGK),
• Income, pensions and allowances granted under Law No. 5510,

Assets and Rights Partly Exempt from Attachment

These are generally governed by Article 83. Here, wages may broadly be understood as a source of income. Under Article 93 of Law No. 5510 on Social Insurance and General Health Insurance, income, pensions and allowances are addressed; accordingly, the pensions and allowances of retired persons cannot be attached without the debtor’s consent. Under Article 83, at least one quarter of the debtor’s income is attached in any event; this is the minimum deduction. Whether a higher proportion is to be attached is decided by the enforcement officer, having regard also to the social and economic circumstances of the debtor and their family. Where more than one creditor has brought proceedings against the debtor, the enforcement officer makes payments in the order of attachment. As the debtor’s income increases, the amount attached will also increase. At most one quarter of an employee’s wages may be attached (Article 35 of the Labour Law). As regards the attachment of wages, Articles 355 and 356 must be complied with.

• Part of rights of usufruct and proceeds likewise cannot be attached.
• Part of maintenance not based on a court judgment may be attached, but maintenance based on a court judgment cannot be attached at all.
• At most one quarter of an employee’s wages may be attached. Since payments such as severance pay, notice pay and holiday pay are not regarded as wages, they may be attached in full.

Participation in Attachment: Ordinary and Privileged Participation

In enforcement proceedings based on a court judgment, the debtor generally faces a single creditor, and the debtor’s assets are attached in respect of that creditor’s claim. Where the same assets are subsequently attached for the claims of other creditors as well, the question arises of how the creditors are to be satisfied. The governing principle here is chronological order. However, where the conditions for participation in the attachment are met, the creditors are satisfied pro rata (proportional equality).

Where proceedings have been brought against the debtor and the debtor’s attached assets cover the claim, the question of participation in attachment will not arise. However, where more than one creditor has claims against the debtor, and in particular where those creditors have commenced proceedings against the debtor and the debtor’s attached assets do not cover the claims of all the creditors bringing proceedings, and the conditions for participation in attachment are also met, the procedure for participation in attachment must be followed. Where the conditions are met and there is participation in attachment, the creditor who first obtained the attachment has no priority; creditors of the same rank, in the order specified in the Law, receive their claims pro rata from the sale proceeds.

Ordinary Participation in Attachment

The legislator has laid down certain conditions for ordinary participation in attachment. If those conditions are met, participation in the first attachment is possible. If they are not met, a creditor who obtains an attachment later cannot participate in the first attachment (Art. 100/last paragraph).

The conditions for ordinary participation are as follows:

1. Having Brought Enforcement Proceedings:The creditor wishing to participate in the first attachment must have brought enforcement proceedings against the debtor, and those proceedings must have become final so that the creditor has acquired the right to request attachment.
2. Priority:The claim of the creditor participating in the attachment must have arisen before the following dates:
3. Proof by Document: It must be proved, by one of the documents exhaustively listed in the Law, that the priority condition is met. A creditor holding a document other than these cannot participate in the first attachment. These documents are:

Dated before the date of the proceedings or action mentioned above:

• A certificate of insolvency,
• A judgment obtained as a result of an action brought,
• An official instrument or an instrument whose date and signature have been certified,
• A receipt or document issued by official departments or competent authorities within their powers and in accordance with due procedure.

In addition to the documents listed in the Law, a certificate of pledge shortfall is also accepted as one of the documents required for participation in attachment.

A creditor wishing to participate in the attachment submits its request to the enforcement office at which the first attachment was made. The enforcement officer examines whether the conditions for ordinary participation in attachment are met and decides accordingly. If the enforcement officer grants the request for participation and the attached property is sufficient to cover the claims of all the creditors, the officer simply records the participation at the foot of the first attachment report (Art. 104/I). In addition, the participation is notified under Article 103 to the creditors who previously obtained or participated in the attachment and to the debtor, and they are asked to state any observations they may have. If the enforcement officer realises that the value of the attached property will not cover the claims of all the creditors once the participation is taken into account, the officer makes additional attachments sufficient to cover the claims of all the creditors. An additional attachment requires a request by the creditor or creditors (Art. 100/II). Creditors who cannot participate in the attachment may participate only in respect of amounts remaining after the preceding rank (Art. 100/III).

Privileged Participation in Attachment

The Law protects certain creditors by allowing them to participate in an attachment without bringing enforcement proceedings. This form of participation is called privileged (proceeding-free) participation. The right of privileged participation does not pass to third parties.

The conditions for privileged participation are as follows:

1. Creditors Entitled to Privileged Participation in Attachment: These are listed exhaustively in the Law. They are:
2. No Requirement to Bring Enforcement Proceedings: In privileged participation, such creditors may participate directly in an attachment obtained by another creditor. There is no need to commence proceedings beforehand for this purpose.

• The debtor’s spouse (if the claim arose during the marriage),
• The debtor’s children,
• Persons of whom the debtor is guardian or trustee (the civil court of peace, as the guardianship authority, may also exercise privileged participation on behalf of such persons),
• A creditor under a life-care contract,
• A maintenance creditor whose claim is based on a court judgment awarding maintenance.

Creditors in the first three categories may exercise the right of participation during the relationship or within one year of its termination. However, this does not apply to adult children or to the other two creditors.

A creditor entitled to privileged participation, without having to commence enforcement proceedings beforehand, notifies the enforcement office where the first attachment was imposed of its claim, its basis and its wish to participate without proceedings. The request for privileged participation must be made before the price of the sold asset is paid into the enforcement office’s cash desk. The enforcement office notifies this to the other creditor who obtained the attachment and to the debtor. If either of these persons objects within seven days, the request for privileged participation is provisionally accepted and the person requesting privileged participation is informed that it must bring an action before the general courts within seven days. The court’s subject-matter jurisdiction is determined according to the general provisions. The court with territorial jurisdiction is the court of the place where the proceedings are conducted. The action is conducted under the simplified procedure. If no action is brought within this period, the right to participate in the attachment and the provisional attachment lapse. However, this does not apply to maintenance creditors. A maintenance creditor acting in bad faith may not participate in the attachment on a privileged basis (Art. 101/III).

Payment of the Debt in Instalments

The debtor may wish to pay the debt in instalments either before or after attachment. Whereas before attachment the terms of payment by instalments are determined jointly by the creditor and the debtor, after attachment the debtor may pay the debt in instalments if the unilateral declaration addressed by the debtor to the enforcement office complies with the conditions laid down in the Law.

A debtor against whom enforcement proceedings have become final may wish to pay the debt for various reasons. One such reason is that attached property is sold at low prices and costs increase if the proceedings continue. For this reason, the debtor may pay the debt by instalments before or after attachment. In both cases, the sale will be prevented. The Law regulates only instalment arrangements made after attachment.

If the creditor and the debtor meet at the enforcement office, or reach agreement on this matter when attachment is being carried out, the enforcement officer records this in minutes, which are signed at the foot by the creditor, the debtor and the enforcement officer. An instalment agreement is thereby concluded. In an agreement made before attachment, the parties may determine the amount and dates of the instalments as they wish. However, in order for consequences, particularly criminal consequences, to arise in the event of breach of the instalment agreement, the instalment amounts and payment dates must be clearly specified in the agreement. In payment by instalments after attachment, each instalment must be not less than one quarter of the debt and the first instalment must be paid immediately. In addition, the remaining instalments must be paid at least monthly and must not exceed three months in total. Whether the debtor’s offer of instalments is made before or after attachment:

• If it is accepted and the instalment agreement is validly made at the enforcement office, the proceedings are stayed.
• The debtor and the creditor may make more than one agreement of this kind.
• For as long as these agreements continue, the time limits for requesting a sale under Articles 106 and 150/e do not run.
• If the total duration of the agreements exceeds ten years, the time limits resume running from where they stopped as from the date on which that period is exceeded.
• If the debtor fails to pay the instalments on time or fails to fulfil the conditions of payment by instalments:

Bibliography

• KURU, BAKİ: İcra ve İflas Hukuku [Enforcement and Bankruptcy Law], Ankara, 2017.
• ATALI, MURAT/ ERMENEK, İBRAHİM: İcra ve İflas Hukuku [Enforcement and Bankruptcy Law], Ankara, 2018.
• PEKCANITEZ, H/ ATALAY, O/ ÖZEKES, M/ SUNGURTEKİN ÖZKAN, M: İcra ve İflas Hukuku [Enforcement and Bankruptcy Law], Istanbul 2017.
• ARSLAN, R/ YILMAZ, E/ TAŞPINAR AYVAZ, S: İcra ve İflas Hukuku [Enforcement and Bankruptcy Law], Ankara 2017.

Selda GÜNGÖR