What is Participation in Seizure?

What is Participation in Seizure? – Izmir Lawyer

Participation in seizure occurs when a creditor who initially seized an asset belonging to a debtor is joined by other creditors of the same debtor in that seizure. This happens when multiple seizures are placed on the same asset. Participation in seizure can be with follow-up proceedings, but it is also possible without follow-up proceedings if the reasons specified in the law exist.

Participation in the attachment can be requested until the proceeds of the sale of the property are deposited into the enforcement office's treasury. The Enforcement Director examines whether the person requesting participation in the attachment has the authority to request attachment. If the authority to request attachment has been granted, the request is accepted if the conditions in Article 100 of the Enforcement and Bankruptcy Law are met. The right to request attachment expires one year after the date of notification of the payment order. If the attachment request is not made within the legal period or is not renewed within this period after being withdrawn, the file is closed. In this case, only the enforcement file is closed, the enforcement proceedings are not terminated. Upon a request for renewal, the creditor may request attachment again through the same enforcement file.

Procedure for Participating in Seizure:

Enforcement and Bankruptcy Law Article 100 – Creditors who may participate in the attachment at the same level until the proceeds of the sale of the property following the first attachment are deposited into the treasury:

1- If the first attachment is based on an enforcement proceeding without a court order, the certificate of insolvency obtained based on an enforcement proceeding initiated prior to the request for enforcement; if it is based on a court order, the certificate of insolvency obtained based on an enforcement proceeding initiated prior to the filing of a lawsuit.,

2- A judgment obtained in a case filed before the dates written in the paragraph above,

3- An official document or a document with a certified date and signature, dated prior to the same dates,

4- These are creditors who rely on receipts or documents issued by official departments or authorized authorities prior to the same dates, within their authority and according to the procedure. In this way, upon application, the enforcement office makes additional attachments to cover all the claims of creditors of the same rank. Creditors other than these can only participate in the attachment for the amounts exceeding those of the previous rank.

Therefore, the conditions for participation in seizure can be summarized as follows:;

1. The creditor participating in the seizure must have initiated and finalized a legal proceeding against the debtor. Therefore, the creditor must have the authority to request the seizure.

2. If the claim of the creditor participating in the attachment is based on an enforcement proceeding without a judgment, it must have arisen before the request for the first attachment; if the first attachment is based on an enforcement proceeding with a judgment, it must have arisen before the date the lawsuit was filed in which the judgment was issued.

3. The claim must be based on one of the documents listed in the law. In this context, the claim must be proven with one of the documents listed below.

4. For the first attachment, a certificate of insolvency obtained prior to the request for attachment (if it is an enforcement proceeding without a judgment), a judgment obtained prior to the date of the lawsuit (if it is an enforcement proceeding with a judgment), an official document or a document with a certified date and signature prior to the date of the lawsuit, or a receipt or document issued by official departments or authorized authorities within their powers and according to the procedure prior to the date of the lawsuit.

Procedure for Objections to Participation in Seizure:

When a creditor wishes to participate in the seizure, the enforcement office notifies the debtor and creditors of the participation request. This is because the debtor and creditor will be negatively affected by this situation. If the debtor or creditors do not object within 7 days of the notification, the request to participate in the seizure becomes final. The objection and litigation procedure applies to claims arising from the marriage of the debtor's spouse; and claims arising from the guardian or trustee of a minor under custody. The lawsuit filed regarding the objection is handled according to the simplified trial procedure.

Supreme Court Decisions Regarding Participation in Seizure Proceedings

SUPREME COURT OF APPEALS, 23rd CIVIL CHAMBER, CASE NO. 2015/6843, DECISION NO. 2017/3309, DATE: 20.11.2017

Regarding the participation of public creditors in attachment, since no distinction is made based on the nature of the debt on which the initial attachment is based, public creditors participate in the initial attachment regardless of the reason for which the debt is based, if an attachment has been placed on the public creditor before the sale. If attachments are placed by more than one public creditor after a third party, it must be accepted that all public creditors who placed attachments participate in the initial attachment.

SUPREME COURT OF APPEALS, 23RD CIVIL CHAMBER, CASE NO. 2016/1096, DECISION NO. 2017/977, DATE: 30.3.2017

The main and consolidated cases concern complaints regarding the priority list. The court, based on the case file, determined that in the main case, the complainant was placed 44th, that the complainant did not object to the ranking of those before them, and that even if the priority list in question were annulled, no share would be allocated to this complainant, thus rendering their complaint unjustified. In the consolidated case, although the complainant alleged that the dates in the enforcement files were incorrect, the court found that the debtors' waiver of deadlines would not affect third parties, that the provisional attachment would become a definitive attachment upon the expiry of the payment period, and that the documents supporting the claim would not grant the right to participate in the attachment under Article 100 of the Enforcement and Bankruptcy Law. In the other consolidated case, the court found that the complainant, the tax office, was justified in its complaint and had the right to participate in the first attachment under Article 21 of Law No. 6183. Therefore, the court's decision to reject the complaints in the main and one consolidated case, and to accept the complaint in the other consolidated case and annul the priority list, is in accordance with procedural law and regulations.

SUPREME COURT OF APPEALS, 23RD CIVIL CHAMBER, CASE NO. 2015/6450, DECISION NO. 2016/4302, DATE: 3.10.2016

The case concerns a complaint regarding the order of priority. Article 69 of Law No. 6183 on the Collection Procedure of Public Receivables states: “Each public administration may participate in seizures made by another public administration, provided that the public receivable accrued before the date of the seizure, until any of the seized goods are converted into cash. In case of participation in the seizure, the receivable of the office that made the seizure is collected first from the proceeds of the seized goods. The remainder is paid to the participating offices in order of their participation dates, to be offset against their receivables.” In the concrete case, the order of priority list prepared in the file of the Karaman Enforcement Directorate shows the seizures of the Karaman Tax Office prior to the seizure of the complainant. Therefore, it should be paid first. While the order of priority list should be annulled for this reason, its application to the pro-rata method is deemed incorrect.

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