The seizure of a debtor’s property, rights and receivables through the exercise of State power for the purpose of collecting a claim is termed attachment. In practice, however, not every attachment complies with the law. The attachment of assets protected by statute, enforcement action taken at an address bearing no connection to the debtor, attachments far exceeding the amount of the debt, procedurally defective enforcement acts and practices that intrude upon the privacy of private life all afford the debtor an opportunity to object to the attachment.
This is one of the most effective protective instruments available to a debtor in enforcement law. An application made in good time and upon sound legal grounds may secure the complete lifting of the attachment, the narrowing of its scope, or the annulment of the unlawful act. Where a defence of exemption from attachment, the attachment of property belonging to a third party, procedurally defective acts or an excess of authority is in issue, the enforcement court may be asked to lift the attachment.
In this note we address, in systematic fashion, the conditions governing such an application, the time limit to which it is subject, the procedure by which it is made, the circumstances in which an attachment may be lifted, and the remedies available against attachment.
Legal Nature and Purpose of Attachment
In the law of compulsory enforcement, attachment is the seizure in law, by the enforcement office, of a debtor’s property, rights and receivables so that a monetary claim may be collected. The act restricts the debtor’s power of disposal over their assets and is intended to secure the creditor’s right. In that respect attachment is the most important protective measure preceding the stage of sale and realisation.
By its nature, attachment is a compulsory enforcement act carried out through the exercise of public authority. It gives rise to a factual or legal restriction upon the debtor’s assets; the debtor may not transfer, conceal or destroy attached property. Attachment also forms the basis of the order of priority and of the scheme of distribution among creditors.
The purpose is to collect the claim by realising the assets. That power, however, has its limits. Enforcement law has adopted the principles of proportionality, attachment only to the extent sufficient to meet the debt, exemption from attachment and protection of the rights of third parties. Disproportionate or unlawful attachments, and those exceeding the limits of authority, may therefore be opened to review by the debtor and other interested parties by way of objection and complaint. For the general framework of the subject, see the note entitled What Is Attachment? The Attachment Process and Its Legal Consequences.
Property and Rights Subject to Attachment
Under the Enforcement and Bankruptcy Act No. 2004, all of a debtor’s property, rights and receivables that carry economic value and are capable of being realised may as a rule be attached. That power is not absolute; the act must be carried out only to the extent sufficient to meet the debt, the provisions on exemption from attachment must be observed, and the rights of third parties must be protected. The subject matter of attachment is not confined to physical assets but extends also to the monetary rights and receivables held by the debtor.
Attachment of Movables
Movables belonging to the debtor, such as commercial goods, machinery, vehicles, household effects and valuables, may be attached. In attachments of this kind the enforcement officer may take the property into custody or, where the parties consent, leave it with the debtor or a third party in the capacity of judicial custodian. By contrast, the essential household effects falling within the scope of Art. 82 of the Enforcement and Bankruptcy Act No. 2004 and the assets regarded as necessary for the family’s minimum standard of living remain outside attachment. The attachment must also not exceed the amount sufficient to meet the debt; a disproportionate attachment is unlawful.
Attachment of Immovables
Dwellings, business premises, plots, fields and other immovables registered in the debtor’s name are attached by entering an attachment annotation in the land registry. This act does not extinguish the debtor’s right of ownership; it merely restricts their power of disposal under Art. 1010 of the Turkish Civil Code No. 4721. Once the annotation has been entered in the land registry, the fact that the immovable is under attachment may be asserted against third parties who subsequently acquire rights over it.
Bank Accounts, Salary and Receivables
A debtor’s bank accounts, salary and receivables held by third parties may form the subject matter of attachment. Attachment of a bank account is effected by an attachment writ sent by the enforcement office to the bank, and a block is placed on the sum standing in the account. In a salary attachment no deduction exceeding one quarter of the salary may as a rule be made; in respect of retirement pensions and social assistance, special provisions on exemption from attachment come into play. For details, see the note entitled Salary Attachment and the Employer’s Legal Liability.
Assets Held by Third Parties
Money, property and rights belonging to the debtor but held by third parties may likewise be attached. Commercial counterparties, tenants, employers and banks occupy the position of third party in this respect. By means of an attachment notice, the enforcement office requires the third party either to declare or to pay over the property or receivables belonging to the debtor.
Where the asset held by the third party does not in fact belong to the debtor, that person may object to the notice. If property belonging to a third party has been attached, that person may seek the lifting of the attachment by advancing a claim of title. The attachment of property belonging to third parties is unlawful and may be annulled by way of an action.
Property and Rights Excluded from Attachment
The general rule in enforcement law is that all realisable assets of the debtor may be attached. The legislature has nevertheless prohibited, in whole or in part, the attachment of certain assets so that the debtor and their family may maintain a minimum standard of living and so that social protection may be afforded. Attachments contrary to these rules are unlawful and may be lifted by way of objection and complaint. Indeed, a significant proportion of the applications made in practice rest upon the provisions on exemption from attachment. For detailed information, see the note entitled Which Assets Cannot Be Attached.
Absolute Exemption from Attachment – Art. 82 of the Enforcement and Bankruptcy Act No. 2004
Article 82 of the Enforcement and Bankruptcy Act No. 2004 provides that certain property and rights may not be attached in any circumstances.
The principal assets falling within this scope are as follows:
- The dwelling appropriate to the debtor’s circumstances
- The essential occupational tools and equipment by which the debtor earns a living
- Household effects set aside for the common use of the debtor and their family
- Alimony claims based upon a judgment
- The family’s two months’ requirement of food and fuel
- Other property and rights expressly stated in statute to be exempt from attachment
Where property of this nature is attached, the debtor or other interested parties may seek the lifting of the attachment by way of a complaint not subject to any time limit.
Partial Exemption from Attachment
Certain income and rights may be attached not in their entirety but only up to a specified proportion. The principal instances may be listed as follows:
- Retirement pensions (which may not be attached absent the debtor’s express consent)
- Wages and salaries (as a rule up to a maximum of one quarter)
- Alimony not based upon a judgment
- Support payments and social assistance (in most cases exempt from attachment)
Where assets may be attached in part, the remaining portion may be made subject to attachment after deduction of the amount assessed by the enforcement officer as necessary for the maintenance of the debtor and their family. Acts carried out without observing these limits are unlawful and may be lifted by way of complaint.
Procedure for Objecting to Attachment
Definition of an Objection to Attachment
An objection to attachment is an application to the enforcement court, on the ground that the attachment carried out in the course of the proceedings is unlawful, seeking that the attachment be lifted, narrowed or corrected. Attachment acts are neither unlimited nor absolute in nature; they must be carried out within the procedure and the limits laid down by statute. Where those limits are exceeded, the debtor or other interested parties may pursue a remedy against the attachment.
The legal basis of the application is constituted first and foremost by Article 16 of the Enforcement and Bankruptcy Act No. 2004 (the complaint remedy); in addition, Art. 82 of the Enforcement and Bankruptcy Act No. 2004, governing exemption from attachment, and Art. 96 et seq. of the Enforcement and Bankruptcy Act No. 2004, addressing the attachment of property belonging to a third party, provide further grounds. The common purpose of these provisions is to review the lawfulness of the attachment and to secure the lifting of unlawful acts.
The attachment of property that cannot be attached, enforcement action at an address unconnected with the debtor, interference with the assets of a third party, disproportionate attachment exceeding the debt, procedurally defective acts and an excess of authority all give rise to such an application. At the conclusion of its examination the enforcement court may order that the attachment be narrowed or lifted, or it may find the act to be lawful.
Distinguishing Complaint from Objection
In enforcement law, "complaint" and "objection" denote different remedies. An objection is as a rule directed against the proceedings or the debt and is raised against the payment order. A complaint, by contrast, rests upon an allegation that an act carried out by the enforcement office is unlawful. Since attachment is in most instances an act of the enforcement office, the remedy to be pursued against an attachment is technically the complaint remedy.
For that reason, applications commonly referred to in practice as an "objection to attachment" are, in terms of their legal nature, generally advanced in the form of a complaint to the enforcement court. Since choosing the wrong remedy may lead to the loss of a right, it is important that the legal nature of the application be correctly identified from the outset.
Grounds for Objecting to Attachment
Attachment is a compulsory enforcement act directed at the elements of a debtor’s assets for the purpose of collecting a claim. That power is, however, not unlimited. In carrying out the act, the enforcement office is bound by the principles of the rules on exemption from attachment, attachment only to the extent sufficient to meet the debt, proportionality, protection of the property rights of third parties and procedural regularity. Where those limits are exceeded, the debtor or the persons whose interests are harmed may complain to the enforcement court and request that the attachment be lifted, narrowed or corrected.
The grounds most frequently advanced in practice, and those that most often succeed, are addressed below.
Attachment of Property and Rights That Cannot Be Attached
The legislature has protected certain assets against attachment entirely and others in part. Where those limits are exceeded, it may be necessary for the attachment to be lifted.
- Absolute exemption from attachment (Art. 82 of the Enforcement and Bankruptcy Act No. 2004): assets such as the household effects in the common use of the debtor and their family and the occupational tools essential to earning a living (essential household effects, basic necessities and professional equipment fall within this scope)
- Partial exemption from attachment: not the whole but a specified proportion of wages and salaries; the restrictions imposed in respect of income of a social nature and of certain payments
Disputes over the applicable proportion in salary attachments, the requirement of consent in respect of retirement pensions, and defences of exemption from attachment concerning payments in the nature of social assistance frequently result directly in the lifting of the attachment.
Attachment of Assets in Excess of Those Sufficient to Meet the Debt (Excessive Attachment)
Attachment must be applied only to the extent sufficient to meet the claim. Where property or funds sufficient to cover the debt already exist, practices of the following kind may amount to a breach of the principle of proportionality:
- the attachment of several bank accounts at one and the same time,
- salary, bank accounts, vehicles and immovables being made subject to attachment collectively and to an excessive degree,
- attachment being placed in addition upon business stock or upon all fixed assets even though a single immovable of high value exists,
- repeated attachment being applied to the same group of assets to an extent exceeding the debt.
In such cases the request is generally framed not as one for the complete lifting of the attachment but for its narrowing so that the portion sufficient to meet the debt remains, and that approach meets with success in practice.
Attachment Applied Before the Proceedings Became Final
Proceeding to attachment before the proceedings have become final is an error frequently encountered, particularly in files of enforcement without judgment. Where the payment order has been objected to and that objection has not been set aside or annulled, the attachment carried out may become unlawful. The following situations may be listed under this heading:
- attachment being carried out before finality has been achieved
- attachment being pursued without awaiting a decision annulling or setting aside the objection
- attachment being applied where, owing to a defect in service, finality has not arisen
The dispute as to finality generally turns upon service. If service is defective, the attachment may be lifted on that ground.
Attachment Based on Defective Service
The legal validity of the proceedings depends upon service on the debtor having been effected in accordance with the proper procedure. Where service has not been effected at all, or has been effected contrary to statute, the proceedings do not become final and an attachment carried out on that basis may become unlawful. Since defective service prevents the debtor from learning of the proceedings and from exercising the right to object within the time limit, the lifting of the attachment may be sought.
The principal irregularities encountered in practice are as follows:
- service being sent to the wrong address
- service not having been effected at all
- the document being left directly with the neighbourhood headman without the MERNİS address having been attempted
- the service document not having been completed in accordance with the proper procedure
- service being treated as effected without a notification slip having been left at the door
- service being effected upon an unauthorised person instead of the debtor
In such cases no legal consequence may be attached to the service, and the proceedings may be regarded as not having become final.
Attachment at an Address Unconnected with the Debtor
This is one of the headings that gives rise to the greatest number of disputes in practice. The following may be given by way of example:
- attachment being carried out at a former address from which the debtor has moved
- action being taken at the home of relatives such as a mother, father, sibling or the spouse’s family
- attempts to establish a connection with the debtor upon weak foundations such as similarity of surname or proximity of address
- acts giving the impression of an attachment at the home of a shareholder or an employee directly on account of a company debt
Important: the mere fact that an attachment has been carried out at a given address does not always of itself lead to annulment; however, to the extent that no legal connection can be established between the debtor and that place, or that the right of ownership of a third party has been harmed in the course of the act, the complaint and claim-of-title remedies yield substantial results.
Attachment of Property Belonging to Third Parties
A frequent problem is that, when an attachment is carried out at the place where the debtor is found, the effects present in the dwelling or the business premises are treated as belonging to the debtor as a matter of course. Yet the true owner may be a third party; a lessor, a spouse, a family member, a company or an employee may occupy that position. In such a case the person concerned may seek the lifting of the attachment by advancing a claim of title.
Attachments Based on Procedural Errors and Excess of Authority
Attachment is an act subject to formal requirements; procedural errors are therefore decisive:
- the scope of the attachment being left uncertain
- the attachment record being drawn up incompletely or in terms that are internally contradictory
- notification and service procedures being conducted contrary to the proper procedure
- the boundary between "determination" and "attachment" being confused in the course of the act
Attachments Giving Rise to Violations of Fundamental Rights: Searching Documents, Gathering Evidence and Infringements of Private Life
This heading has come to the fore of late, particularly in attachments at dwellings and business premises:
- the searching of documents beyond the purpose of the attachment, the rummaging through of files and folders, and efforts to establish a connection with the debtor
- access being sought to, or actual interference being made with, the contents of a computer or a telephone
- the copying or processing of documents constituting personal data
- the taking of photographs of a kind that harms the privacy of private life, or the drawing up of records that give rise to disclosure
Attachment is a compulsory enforcement act carried out on the strength of public authority. The act must therefore be conducted in conformity with the law, with the right of property, with fundamental rights and with the principle of proportionality. Where the limits drawn by the Enforcement and Bankruptcy Act No. 2004 are exceeded or fundamental rights are infringed, those concerned may complain to the enforcement court and seek the lifting or narrowing of the attachment or the annulment of the act (Art. 16 of the Enforcement and Bankruptcy Act No. 2004).
Excess of Authority and the Forced Searching of Documents During Attachment
The duty conferred upon the enforcement officer consists in identifying the elements of the debtor’s assets and placing them under attachment. That duty does not encompass a general power of search or of gathering evidence.
The following practices may be regarded as unlawful:
- the forcing of personal spaces
- the searching of documents and the examination of files outside the purpose of the attachment
- the conduct of inquiries exceeding the proper scope in order to establish a connection with the debtor
- acts directed at gathering information and documents falling outside the attachment
Conduct of this kind may amount to an unlawful attachment and may form the subject of a complaint (Art. 16 of the Enforcement and Bankruptcy Act No. 2004).
Privacy of Private Life and the Protection of Personal Data
In the course of an attachment, the private life and personal data of the debtor and of third parties must be protected.
Legal bases:
- Personal Data Protection Act No. 6698 (KVKK) – protection of personal data
- Art. 24 of the Turkish Civil Code No. 4721 – protection of personality rights
- Art. 20 of the Constitution – privacy of private life
Practices that may be regarded as unlawful:
- the disclosure of trade secrets
- the examination or copying of private documents
- interference with telephones, computers or digital data
- the drawing up of recordings and records that infringe private life
Note: practices of this kind may not be confined to the lifting of the attachment; where the conditions are met they may also lay the ground for arguments as to non-pecuniary damages, an application under the Personal Data Protection Act No. 6698 (KVKK) and, in some instances, criminal liability.
Uncertainty as to the Scope of the Attachment
- it not being possible to ascertain which property has been attached and in respect of which debt
- action being taken without any relationship of ownership having been established between the attached property and the debtor
- everything on the premises being seized upon a "general attachment" understanding
In such cases the lawfulness of the act is reviewed and, most often, a decision to correct or narrow the attachment arises. Where the ground applicable to the particular case is accurately identified, the application is made in a targeted manner and the prospect of success rises markedly.
Time Limit for the Application
The remedy to be pursued against attachment is as a rule the complaint, which is directed to the enforcement court and is confined within specified time limits. Since a missed time limit may lead to the rejection without examination of even a well-founded application, it is of great importance that the time limit be correctly identified and calculated.
The Rule: Seven Days
Under Article 16 of the Enforcement and Bankruptcy Act No. 2004, the time limit for complaining against acts of the enforcement office is seven days. An application made against an attachment is likewise, as a rule, subject to that time limit.
The time limit begins to run on the date on which the attachment became known. For a debtor present during the attachment, it starts on the day the record was drawn up; for a debtor not present at the location, the date on which the attachment actually became known is taken as the starting point.
Determining the Date of Knowledge
One of the points that gives rise to the greatest debate in practice is when the attachment became known. The starting moment takes shape according to the particular case:
- In a salary attachment → the day on which the first deduction was made or the notification became known
- Where the debtor was present during the attachment → the day of the attachment
- Where a block has been placed upon a bank account → the day on which the block became known
- Where the attachment was carried out in the debtor’s absence → the date on which it actually became known
- In an attachment directed at a third party → service of the notice or actual knowledge
In the calculation, documents such as the attachment record, the service document, bank records and salary slips may be decisive.
Complaints Not Subject to a Time Limit
In the case of certain unlawful acts no time limit runs and an application may be made at any time. The instances of complaints not subject to a time limit that stand out in practice are as follows:
- an act carried out by an enforcement office lacking jurisdiction
- absolute exemption from attachment (the assets within the scope of Art. 82 of the Enforcement and Bankruptcy Act No. 2004)
- a manifest breach of public policy
- in some circumstances, an attachment applied before the proceedings became final
In these cases the lifting of the attachment may be sought even though the seven-day time limit has expired.
Time Limits in Respect of Exemption from Attachment and Claims of Title
- Claim of exemption from attachment: as a rule it must be raised within the seven-day time limit; in cases of absolute exemption, however, no time limit runs.
- Claim of title (property belonging to a third party): it must be raised during the attachment or within 7 days of knowledge; delay may result in the rejection of the claim.
These two remedies are frequently confused in practice, and the wrong choice may lead to the loss of a right.
Court with Subject-Matter and Territorial Jurisdiction
An allegation that an attachment is unlawful is as a rule raised by way of a complaint to the enforcement court.
Court with subject-matter jurisdiction: the application is directed to the enforcement court to which the enforcement office that carried out the attachment is attached. In technical terms this application is not an "objection" but a complaint.
Court with territorial jurisdiction: the application must be directed to the enforcement court to which the enforcement office that carried out the act is attached. Applications made to the wrong court may give rise to the loss of a right on grounds of time.
Property of Persons Other Than the Debtor and Claims of Title
Under the Enforcement and Bankruptcy Act No. 2004, attachment may be applied only in respect of the debtor’s property, rights and receivables. In practice, however, when action is taken at places where the debtor is found, the property present at the location may be presumed to belong to the debtor on the strength of the presumption arising from possession. That presumption is not, however, conclusive. The attachment of property belonging to another is unlawful, and the person whose ownership is harmed may seek the lifting of the attachment by advancing a claim of title (Art. 96 et seq. of the Enforcement and Bankruptcy Act No. 2004). The claim of title is among the fundamental remedies protecting the right of property.
Property of Third Parties Made Subject to Attachment
Although the fact that property is in the debtor’s possession at the moment of attachment creates a factual presumption, ownership may belong to a third party. An owner whose right is harmed may pursue the claim-of-title remedy particularly in the following cases (Art. 96 of the Enforcement and Bankruptcy Act No. 2004):
- fixtures and fittings located in leased business premises,
- household effects belonging to family members,
- machinery and equipment belonging to a company,
- the spouse’s personal property and items of jewellery,
- vehicles, stock and commercial goods belonging to a third party
Where the claim is found to be well-founded, the attachment is lifted.
The Claim of Title and the Applicable Time Limit
A claim of title is an assertion that ownership of the attached property lies not with the debtor but with a third party (Art. 96 of the Enforcement and Bankruptcy Act No. 2004). This claim may be raised:
- by having it entered in the record during the attachment,
- by making a written application to the enforcement office within 7 days of learning of the attachment
The enforcement office notifies the creditor and the debtor of the claim (Art. 97 of the Enforcement and Bankruptcy Act No. 2004). If the creditor does not object within 3 days of service of that notification, the claim is deemed accepted and the attachment is lifted. If an objection is made, the dispute is brought before the courts.
The Conduct of the Action for a Claim of Title
A claim of title arises where ownership or a limited right in rem over the attached property is asserted by the debtor or by a third party. The procedure to be followed varies according to whose possession the property is in (Arts. 96–97 and 99 of the Enforcement and Bankruptcy Act No. 2004).
A) Where the property is in the debtor’s possession
- The debtor or the third party raises the claim of title during the attachment or within seven days of the day on which they learned of it (Art. 96).
- The claim is entered in the attachment record by the enforcement office and communicated to the parties.
- The creditor and the debtor are given 3 days in which to state whether they object.
- If an objection is made, the file is transmitted to the enforcement court for decision (Art. 97).
- The court orders either the continuation or the stay of the proceedings; if continuation is ordered, the third party must bring an action for a claim of title within seven days of the pronouncement or the service of that decision, failing which they are deemed to have abandoned the claim.
- If the claim is upheld at the conclusion of the proceedings the attachment is lifted; if it is rejected the attachment subsists.
B) Where the property is in a third party’s possession
- The third party asserts that the property belongs to them or that they hold a right in rem over it.
- If the third party assumes the capacity of judicial custodian, the property is not taken into custody.
- The enforcement director grants the creditor seven days in which to bring an action for a claim of title (Art. 99).
- If no action is brought within that period, the third party’s claim is deemed accepted.
- If an action is brought, the property may not be sold until the proceedings have concluded.
Evidence Used for Purposes of Proof
Acceptance of a claim of title depends upon ownership being established by strong and clear evidence. The documents most frequently relied upon in practice are as follows:
- lease agreements and inventories of fixtures and fittings
- invoices and e-archive records
- the company’s fixed-asset and depreciation records
- credit card statements and bank payment receipts
- serial number records and warranty certificates
- supporting witness statements
Proof of ownership by written document plays a decisive role in the acceptance of the claim. Infringements of this kind may not stop at the lifting of the attachment but may also give rise to liability for pecuniary and non-pecuniary damages.
The Independent Legal Assessment
Two elements stand out as determining success in applications made against attachment: correct legal characterisation and the management of time limits. One and the same case may involve claims of exemption from attachment, of excessive attachment and of defective service alike; where it is not distinguished at the outset which of these is subject to a complaint not bound by any time limit and which must be raised within the seven-day period, the petition may be rejected without examination on the merits.
The second critical point is that the request be correctly framed. In claims of excessive attachment, seeking the narrowing of the attachment to the extent sufficient to meet the debt, rather than its complete lifting, is an approach that meets with far greater success before the courts. In particular files we consider it useful that the following points be observed:
- documenting the date of knowledge by means of the attachment record, a salary slip, a bank record or the service document
- setting out separately and expressly in the petition those matters falling within the scope of complaints not subject to a time limit
- preparing, in a claim of dwelling exemption, a valuation inquiry as to whether the dwelling is appropriate to the debtor’s circumstances
- submitting, together with the application, the written evidence establishing ownership in a claim of title
- examining the service document and the MERNİS records where a defect in service is alleged
- recording the position immediately by entering an annotation in the record where practices give rise to a violation of fundamental rights
Independent Legal provides advisory services and conducts litigation in matters concerning the review of attachment acts in enforcement files, the preparation of complaint applications and the conduct of disputes over claims of title.