Can The Allegation That A Forged Endorsement Was Added After The Check Was Presented To The Bank Be Assessed By The Enforcement Court?
Summary:
In the specific case, enforcement proceedings were initiated based on a check dated May 25, 2010, in the amount of 25,000 TL, using the attachment procedure specific to negotiable instruments. The debtor claimed that the creditor had initiated enforcement proceedings by inserting a false endorsement into the endorsement chain after presentation of the check, that the creditor was not the authorized holder, and requested that the proceedings be canceled. The court summoned the relevant bank and obtained a photocopy of the check at the time of presentation, which showed that the creditor was not included in the endorsement chain. Therefore, the court decided to cancel the proceedings regarding this check.
Upon examination of the certified copy of the check forming the basis of the enforcement, it is understood that the first endorsement belongs to the payee, that the enforcement creditor M. T. is included in the endorsement chain, that the check was presented to the bank within its term, that its characteristics are complete, and that the creditor is the authorized holder.
In this case, considering the above legal regulation and the information on the original check, it is inappropriate for the court to examine the photocopy obtained from the bank in writing and rule in favor of acceptance instead of dismissing the complaint regarding this check.
T.C.
Court of Cassation
General Assembly of Civil Law
Case No: 2014/-2060
Decision No: 2014/976
Date: 11/26/2014
Following the trial concerning the “objection to enforcement proceedings” between the parties, upon the request of the parties’ attorneys to review the decision dated 05.04.2011, No. 2011/176 E – 2011/431 K, issued by the Istanbul 11th Enforcement Court of Justice partially accepting the case, the 12th Civil Chamber issued a reversal decision dated February 20, 2012, numbered 2011/19590 E. – 2012/4158 K, stating:
“…1) Based on the claims and defenses of the parties, the information and documents in the file, and the reasoning of the decision, the debtor’s appeal objections are REJECTED;
2) Regarding the creditor’s appeal:
Article 702 of the Turkish Commercial Code stipulates that “A person holding a negotiable check shall be considered the authorized holder if his right is understood from the successive and interdependent endorsements, even if the last endorsement is a blank endorsement…”
Again, in bills that have ceased to be negotiable and have been presented and have undergone various endorsements, it is possible to collect the bill amount and return it to the applicant debtor by applying to the applicants by skipping the endorsers. In this case, it is not necessary to have a new reverse endorsement signature on the bill.
The debtor to whom the bill is presented, whose signature appears in the chain of endorsements and who holds the bill, is considered the authorized holder.
In the specific case, the creditor initiated enforcement proceedings through attachment specific to bills of exchange based on a check dated May 25, 2010, in the amount of TL 25,000. The debtor claimed that the creditor had initiated the proceedings by inserting a false endorsement into the endorsement chain after the presentation of the check, that he was not the authorized holder, and requested the cancellation of the proceedings. The court summoned the relevant bank and obtained a photocopy of the check at the time of presentation, which showed that the creditor was not included in the endorsement chain. Therefore, the court decided to cancel the proceedings regarding this check.
Upon examination of the certified copy of the check forming the basis of the enforcement, it is understood that the first endorsement belongs to the payee, that the enforcement creditor M. T. is included in the endorsement chain, that the check was presented to the bank within its term, that its characteristics are complete, and that the creditor is the authorized holder.
In this case, it is inappropriate for the court to examine the photocopy obtained from the bank in writing and rule in favor of acceptance, rather than dismissing the complaint regarding this check, taking into account the above legal regulation and the information on the original check…
The case was overturned on these grounds and returned to the court, and after a retrial, the court upheld its previous decision.
APPELLANT: Defendant’s (creditor’s) attorney
DECISION OF THE GENERAL ASSEMBLY OF THE COURT OF APPEALS
After the Supreme Court of Appeals reviewed the case and determined that the appeal against the decision to uphold the previous ruling was filed within the time limit and after reading the documents in the file, the following was decided:
The case concerns an objection (objection to the debt) to an enforcement proceeding initiated by means of attachment specific to bills of exchange.
Plaintiff’s (debtor’s) attorney; The plaintiff’s attorney, in the petition filed with the court, stated that the check dated May 5, 2010, was dishonored and lost its negotiable instrument status, and that the creditor, after the presentation of the check dated May 25, 2010, intervened and endorsed the check, that he is not the legitimate holder, that the checks do not have the status of a bill of exchange because the signatures on them do not belong to the drawer and endorsers, and therefore requests that the proceedings be terminated.
The court, upon examination without opening a hearing, found that a photocopy of the check dated May 25, 2010, taken at the time of presentation, was obtained from the bank and that the photocopy did not contain the endorsement of the claimant M.T. However, in the photocopy available in the enforcement file, the endorsement was made by an intervening party. Therefore, the court ruled that the creditor pursuing the collection was not the legitimate holder of this check and that the collection should be canceled in accordance with Article 170/a-2 of the Enforcement and Bankruptcy Law. The case was partially accepted, and upon appeal by the parties’ attorneys, the Special Chamber overturned the decision for the reasons explained above.
The Local Court issued a decision to uphold the judgment, expanding on the previous grounds, and the defendant’s (creditor’s) attorney appealed the decision to uphold the judgment.
The dispute before the General Assembly of the Court of Appeals centers on whether the claimant’s endorsement is present on the check dated May 25, 2010, and, depending on the conclusion reached here, whether the defendant (creditor) is the authorized holder.
Considering the parties’ mutual claims and defenses, the minutes and evidence in the file, the compelling reasons explained in the reversal decision, and especially the information on the original check, it is understood that the first endorsement belongs to the payee and that the claimant M.T. is included in the chain of endorsements. Since the reversal decision of the Special Chamber, which was also adopted by the General Assembly of the Court of Appeals, must be complied with, and since the previous decision to resist is contrary to procedure and law, the decision to resist must be reversed.
CONCLUSION: The defendant’s (creditor’s) attorney’s appeal is accepted, and the decision to uphold the ruling is overturned for the reasons stated in the Special Chamber’s reversal decision, which was also adopted by the General Assembly of the Court of Appeals, pursuant to Article 30 of Law No. 6217 and the “Provisional Article 3” added to the Code of Civil Procedure No. 1086 pursuant to Article 429 thereof, the appeal fee shall be refunded to the payer upon request, and it was unanimously decided on 26.11.2014.