ATM, Credit Card Theft Or Forced Withdrawal Of Money
LAW NO: 5464
BANK CARDS AND CREDIT CARDS LAW
Unauthorized Use and Insurance of the Card
ARTICLE 12- In the event of the loss or theft of the card or the information specified in Article 16, the cardholder shall be liable for damages arising from unlawful use occurring within twenty-four hours prior to the notification, up to a limit of one hundred and fifty New Turkish Liras. This limit does not apply if the unlawful use is based on the holder’s gross negligence or intent, or if the notification is not made.
The card-issuing institution is obligated to ensure that the cardholder’s liability of 150 New Turkish Liras specified in the first paragraph is insured, subject to the payment of the relevant insurance premium upon request. The procedures and principles regarding the insurance of cards and the sharing of liability shall be determined by a regulation to be issued by the Institution.
Notification Obligation
ARTICLE 16 – The cardholder is obliged to keep the card entrusted to them and, if the use of the card requires a code number, password, or other method of identification, to protect this information securely and take measures to prevent its use by others, and to immediately notify the card-issuing institution in the event of the loss, theft, or any unauthorized transaction involving the card.
The cardholder is obligated to notify the issuing institution of any changes to their address within fifteen days of the change.
T.C.
COURT OF CASSATION
19th CIVIL CHAMBER
CASE NO: 2016/15753
DECISION NO: 2018/813
DECISION DATE: 21.2.2018
>If an ATM or credit card is stolen or taken by force or threat, and the cardholder notifies the bank of this situation within 24 hours, the cardholder is only liable for the first 150 TL of the unauthorized amount withdrawn.
>The bank is required to refund the amount withdrawn from the account to the cardholder, even if the contract states otherwise. No fault reduction may be applied against the cardholder.
Following the trial of the debt claim between the parties, the judgment granting the claim was appealed by the defendant’s counsel within the prescribed time limit, and the case file was reviewed, and the necessary discussions and considerations were made.
DECISION
The plaintiff’s attorney claimed that the plaintiff’s credit card from the defendant bank was forcibly taken by third parties, the card’s PIN was obtained from the plaintiff under threat of a weapon, a cash withdrawal was made from the defendant bank’s ATM on the same day, and despite notification to the defendant bank, the amount withdrawn was collected from the plaintiff. and that the plaintiff is not liable for the amount collected from him, and has filed a lawsuit demanding that the amount paid, along with interest accruing from the date of payment, be collected from the defendant.
The defendant’s attorney argued that the plaintiff is responsible for protecting the credit card and its PIN, that the defendant bank was not notified, and that the defendant cannot be held liable, and requested that the lawsuit be dismissed.
The court ruled that the plaintiff had been the victim of theft, had notified the bank within 24 hours of the unlawful act, and that, pursuant to Article 12 of Law No. 5464, the use of the card in violation of the law rendered the amount of 150 TL withdrawn in cash, as well as the amount collected from the plaintiff due to the cash withdrawal transaction, unlawful. and that the plaintiff’s payments should be refunded, the court accepted the case and ordered the defendant to pay the amounts with interest. The defendant’s attorney appealed the decision.
CONCLUSION: Based on the documents in the file, the evidence supporting the decision, and the compelling reasons, and since there is no inaccuracy in the assessment of the evidence, all of the defendant’s counsel’s appeals, which are deemed unfounded, are rejected, and the decision, which is in accordance with procedure and law, is affirmed. The appeal fee specified below is to be collected from the defendant who filed the appeal. The decision was made unanimously on February 21, 2018.
T.C.
COURT OF CASSATION
19th CIVIL CHAMBER
CASE NO: 2015/18393
DECISION NO: 2016/8120
DECISION DATE: 3.5.2016
Following the trial of the negative determination/restitution case between the parties, the judgment partially accepting the case was appealed by the defendant’s attorney within the prescribed time limit. The case file was reviewed, and the necessary discussions and considerations were made.
DECISION
The plaintiff’s attorney stated that his client’s credit card and salary card were stolen from his car between 6:00 p.m. and 8:30 p.m. on September 26, 2010, that the defendant bank was immediately notified by phone, yet a total of 4,980 TL was withdrawn in cash from the salary card (3,080 TL) and the credit card (1,900 TL) without the client’s consent, whereas the daily cash withdrawal limit at an ATM is 800 TL, the defendant bank did not issue a warning regarding the cash withdrawal exceeding the daily limit, nor did it ensure the security of the client’s PIN, the defendant forced the client to pay this amount to the bank due to the threat of enforcement, and pursuant to Article 12 of Law No. 5464, , the defendant is liable for damages arising from unlawful use occurring within 24 hours prior to the cardholder’s notification, limited to 150 TL, and has filed a lawsuit requesting the determination that the client is not liable and the recovery of the 4,980 TL unlawfully collected, along with legal interest from the date of payment.
The defendant’s attorney argued that, pursuant to Article 8 of the credit card agreement between the parties, the cardholder is required to immediately notify the bank in the event of theft of the card, and that the cardholder is liable for any expenditures incurred prior to such notification. Furthermore, according to Article 10, the obligation to protect the password and card belongs to the plaintiff, the expenditures were made before the plaintiff’s notification, the defendant has no liability, and legal action should be taken against those who obtained unjust enrichment. The defendant’s attorney stated that the cardholder is liable if the notification is made late and requested that the lawsuit be dismissed.
As a result of the trial conducted by the court, it was determined that the plaintiff reported the theft of his credit card and bank card on September 27, 2010, following their theft on September 26, 2010. Therefore, the plaintiff is liable for transactions made within 24 hours, limited to 150 TL under Article 12 of the Bank Cards and Credit Cards Law, while the defendant bank is liable for transactions made after the notification date, in accordance with the contract between the parties. The court partially accepted the claim, it was decided that the amount of 150 TL, for which the plaintiff is liable, should be deducted from the 4,980 TL withdrawn from the plaintiff’s account using the cards, and the remaining 4,830 TL, along with the legal interest to be applied from the date of the lawsuit, should be collected from the defendant and paid to the plaintiff. The defendant’s attorney appealed the decision.
CONCLUSION: Based on the documents in the file, the evidence on which the decision is based, and the compelling reasons, and since there is no inaccuracy in the assessment of the evidence, all of the defendant’s attorney’s appeals, which are deemed unfounded, are rejected, and the decision, which is in accordance with the procedure and the law, is upheld. The decision was made unanimously on 03/05/2016.
T.C.
COURT OF APPEAL
13th CIVIL CHAMBER
CASE NO. 2013/32840
DECISION NO. 2014/18798
DATE OF DECISION: 12.6.2014
5464/Art. 12, 15, 16, 19
CASE: Following the trial of the debt claim between the parties, the judgment dismissing the case was appealed by the plaintiff and defendant’s attorneys within the prescribed time limit. The case file was reviewed, and the matter was discussed and considered:
DECISION
The plaintiff stated that the credit card he had obtained from the defendant bank was stolen while he was traveling by minibus on March 14, 2005, that he reported the incident to the defendant bank by telephone at 2:43 p.m. and then in writing, and that a purchase of 4,000 TL was made with the credit card at the defendant M., operated by the defendant Ş. Kuruyemiş, owned by the defendant M. and operated by the defendant Ş. The plaintiff stated that the defendant bank informed him that it could not cover this amount because the transaction had been made before the report was filed, and that the defendant bank only assumed liability for 750 TL. The plaintiff claimed that he was forced to pay 3,275 TL to the defendant bank despite having no fault in the theft and use of the credit card, and that the other defendant, Ş. was tried in criminal court and convicted of fraud for this act, and that the defendants are jointly and severally liable, requesting that a total of 3,420.30 TL, including the warning fee, and 5,000 TL in moral damages be collected jointly and severally from the defendants.
The defendant bank argued that the transaction in question took place at 2:39 p.m., four minutes before the plaintiff’s notification, and that they were not liable for any expenses incurred before the notification reached the bank, in accordance with Article 19 of the contract, and requested that the case be dismissed.
The defendant M. argued that it was a routine transaction, that there was no fault on their part, and that the plaintiff was responsible for not properly safeguarding the credit card, requesting the dismissal of the case.
The court dismissed the case against the defendant bank, partially accepted the case against the other defendants, and ruled that 1,645.30 TL be jointly and severally collected from the defendants with discount interest from the date of the lawsuit and paid to the plaintiff, and that the excessive claim and claim for moral damages be dismissed. The judgment was appealed by both the plaintiff and the defendants.
1- )Based on the documents in the file, the evidence on which the decision is based, and the legally required reasons, and in particular because there is no inaccuracy in the assessment of the evidence, all of the defendants’ appeals and the plaintiff’s appeals outside the scope of the following paragraph must be rejected.
2- )The plaintiff claimed that he was not liable for the expenses incurred due to the unlawful use of his credit card by third parties, while the defendants argued that the necessary care was not taken in storing and protecting the credit card information and passwords, and that the bank was not liable for the expenses incurred before the theft was reported, and therefore the plaintiff should be held liable for the expenses incurred. It is established by the case file that the Akbank Axess credit card held by the plaintiff was stolen on March 14, 2005, that the defendant reported the theft to the defendant bank at 2:43 p.m., and that the purchase in question, amounting to 4,000 TL, was made at 2:39 p.m.
To resolve the dispute between the parties, the relevant provisions of Law No. 5464 on Bank Cards and Credit Cards must be examined.
Article 15, titled “Obligations of Cardholders,” states that “Liability arising from the use of the card belongs to the cardholder from the moment the contract is signed and the card is transferred to the cardholder’s possession or the card number, which does not have a physical presence, is learned.”
Article 16, titled “Notification Obligation,” states that “The cardholder is obligated to securely protect the card entrusted to them and, if the use of the card requires the use of a code number, password, or other method of identification, to take measures to prevent its use by others, and to immediately notify the issuing institution in the event of the loss, theft, or any unauthorized transaction involving the card.”
Article 12, titled “Unauthorized Use and Insurance of the Card,” states that “In the event of the loss or theft of the card or the information specified in Article 16, the cardholder shall be liable for damages arising from unlawful use occurring within twenty-four hours prior to the notification, up to a limit of one hundred and fifty New Turkish Liras. This limit does not apply if the unlawful use is based on the holder’s gross negligence or intent, or if the notification is not made.”
Similarly, Article 19 of the credit card agreement between the parties states: “In the event of the loss, theft, or damage of the credit card, the member or supplementary cardholder is obligated to immediately notify the bank by telephone and subsequently confirm the situation in writing. Until such notification is made, all liability arising from transactions made using the credit card, PIN, or credit card number shall be borne by the member or supplementary cardholder. After the bank receives the notification, the bank may suspend the credit card for use both domestically and internationally within a reasonable period of time. Following this suspension, the member or supplementary cardholder shall not be held liable for transactions conducted by third parties using the credit card.”
As can be seen, the credit card holder is obligated to protect and store the credit card entrusted to them in accordance with the aforementioned law, as well as any information related to the use of the card, from the moment they sign the contract with the bank and the card comes into their possession. However, in accordance with Law No. 5464, in the event of the loss or theft of the credit card or this information, the cardholder is liable for damages arising from unlawful use occurring within twenty-four hours prior to notification to the bank, limited to one hundred and fifty New Turkish Liras, provided that there is no gross negligence or intent. In this case, Article 12 of the Law must be evaluated according to the specific circumstances of each case. In the present case, it is understood that the plaintiff fulfilled his obligation to notify the defendant bank, that the 4,000 TL purchase made four minutes before the notification was made by signing the receipt, and that the signature on the receipt was not that of the plaintiff, as determined by the expert report.
It cannot be argued that this unlawful expenditure was based on the plaintiff’s gross negligence or intent. This is because the plaintiff had his card stolen while traveling on a minibus, and there is no claim or evidence in the file that he was negligent in a way that facilitated the theft of the card. According to the normal course of life, it is not possible for the plaintiff to constantly open his wallet and check his credit card while traveling on a minibus. Furthermore, the fact that the purchase was made with a signature on the receipt also indicates that the plaintiff securely protected his password and other information. Under these circumstances, it must be accepted that the plaintiff is liable for damages arising from this unlawful use within twenty-four hours prior to notification to the Bank, in accordance with Article 12 of Law No. 5464, up to a limit of one hundred and fifty New Turkish Liras. Based on the aforementioned reasons, a ½ fault reduction cannot be applied against the plaintiff with respect to the other defendants.
The court, based on incorrect assessments and contrary opinions, ruled that the plaintiff’s password was accessed quickly, the password was not selected or stored securely, the plaintiff did not check whether the card was in his wallet, and his negligence enabled the card to be stolen, and therefore found the plaintiff to be grossly negligent, thereby dismissing the case against the bank in writing and reducing the liability of the other defendants by ½. This decision is contrary to procedure and law and constitutes grounds for reversal.
CONCLUSION: For the reasons explained in paragraph 1 above, the defendants’ appeals and the plaintiff’s other appeals are dismissed. For the reasons explained in paragraph 2, the judgment is reversed in favor of the plaintiff. Pursuant to Article 440/III-2 of the Code of Civil Procedure, the decision is final and binding. The decision was made unanimously on June 12, 2014.