Failure Of The Bank To Cancel The Card Reported Lost By The Bank

Failure Of The Bank To Cancel The Card Reported Lost By The Bank

After the person loses his/her bank card, he/she must report the situation to the bank. The bank must then take measures to cancel the card and protect the material and moral assets of the person on the card. Although the person notifies the bank that the card is lost, the losses that will occur as a result of continuing to shop with the card are charged to both the bank and the owner of the workplace where the POS device is located. Because the person has communicated the status of the lost or stolen card to the necessary places. You can examine the sample text.

General Assembly of Law

Principal Number: 2017/2850

Decision Number: 2019/154

“Case Law Text”

COURT :Consumer Court

At the end of the trial held due to the “compensation” lawsuit between the parties, the decision dated 20.06.2013, numbered 2009/1019 E., 2013/688 K., given by the Istanbul 3rd Consumer Court on the partial acceptance of the claim for pecuniary compensation and the rejection of the claim for non-pecuniary compensation, upon the appeal of the plaintiff’s attorney and the defendants … and Murat Doğan’s attorney, with the decision of the 13th Civil Chamber of the Court of Cassation dated 12.06.2014, numbered 2013/32840 E., 2014/18798 K;
“…The plaintiff stated that his credit card from the defendant bank was stolen on 14.03.2005 while he was travelling in a minibus, that he notified the defendant bank at 14.43 hours by phone and then in writing, that he made a purchase of 4. 000-TL shopping was made with the credit card, the defendant bank stated that the defendant bank could not cover this amount because it was made before the notice, the defendant bank assumed only 750-TL liability, although it had no fault in the theft and use of the credit card, the defendant bank paid 3. 275-TL to the defendant bank even though he had no fault in the theft and use of the credit card, the other defendant … was tried in the criminal court and was punished for fraud due to this action, the defendants are jointly and severally liable, claiming that the total amount of 3.420,30-TL including the warning fee and 5.000-TL moral damages jointly and severally from the defendants.
The defendant bank defended that the purchase subject to the lawsuit took place at 14.39 hours, 4 minutes before the plaintiff’s notification, and that they had no responsibility for the expenditures before the notification reached the bank according to Article 19 of the contract, and requested the dismissal of the lawsuit.
Defendants … and Murat Doğan argued that it was a routine purchase, that they were not at fault, and that the plaintiff was responsible for not keeping the credit card carefully and requested the dismissal of the lawsuit.
The court dismissed the lawsuit filed against the defendant bank, partially accepted the lawsuit filed against the other defendants … and Murat Doğan, and decided to jointly and severally collect 1.645,30-TL from the defendants with rediscount interest from the date of the lawsuit and to give it to the plaintiff, and to reject the excess claim and moral damages claim; the judgement was appealed by the plaintiff and the defendants … and Murat Doğan.
1- Based on the writings in the case, the evidence on which the judgement is based and the reasons in accordance with the law, and especially since there is no inaccuracy in the appreciation of the evidence, all the objections of the defendants … and Murat Doğan and the other objections of the plaintiff, which are not covered by the following paragraph, should be rejected.
2- The plaintiff argued that the bank is not responsible for the expenditures due to the unlawful use of the credit card by third parties, and the defendants argued that the plaintiff should be responsible for the expenditures made, stating that the necessary care was not taken in the storage and protection of the information and passwords related to the credit card, and that the bank is not responsible for the expenditures made before the theft notification. It is fixed with the scope of the file that the Akbank Axess credit card of the plaintiff was stolen on 14.03.2005, the defendant notified the defendant bank at 14.43, and the 4.000-TL purchase subject to the lawsuit was made at 14.39.

In order to resolve the dispute between the parties, it is necessary to examine the relevant provisions of the “Bank Cards and Credit Cards Law” numbered 5464.
In Article 15 titled “Obligations of Cardholders”, “The responsibility arising from the use of the card belongs to the cardholder from the moment the contract is signed and the card is taken into possession or the card number, which has no physical presence, is learnt.”
Article 16, titled “Obligation to Notify”, reads as follows: “The cardholder is obliged to protect the card entrusted to him/her, and if the use of the card requires the use of a code number, password or other identification method, to protect this information securely and to take measures to prevent its use by others, and to immediately notify the card issuer if the card is lost, stolen or if he/she learns of any transaction that has occurred against his/her will.”
Article 12 titled “Unlawful Use of the Card and Insurance” reads as follows: “In case of loss or theft of the card or the information specified in Article 16, the cardholder is liable for the damages arising from the unlawful use of the card within twenty-four hours prior to the notification to be made, limited to one hundred and fifty New Turkish Liras. This limit is not applicable in cases where the unlawful use is based on the gross negligence or intent of the holder or in cases where the notification is not made.”
Again, in Article 19 of the credit card agreement between the parties, “In the event that the credit card is lost, stolen or damaged in such a way that it cannot be used, the member or additional cardholder is obliged to immediately notify the bank by telephone and then confirm the situation in writing. Until this notification, all responsibility arising from the transactions made using the credit card, password or credit card number belongs to the member or additional cardholder, and the member and additional cardholder cannot be held responsible for the transactions to be carried out by third parties with the credit card after a reasonable period of time required for the Bank to close the credit card for use in the country and abroad after the notification reaches the Bank.”
As it is seen, the credit card holder is obliged to protect and keep the credit card entrusted to him/her as per the aforementioned law, as well as the information related to the use of this card, from the moment he/she signs a contract with the bank and the card is in his/her possession. However, pursuant to Law No. 5464, in the event of loss or theft of the credit card or such information, unless he/she has gross negligence or intention, he/she is liable for the damages arising from the unlawful use within twenty-four hours prior to the notification to the bank, limited to one hundred and fifty New Turkish Liras. In this case, Article 12 of the Law should be evaluated according to the characteristics of each concrete case. In the concrete case, it is understood that the plaintiff fulfilled the obligation to notify the defendant Bank, the purchase of 4.000-TL made 4 minutes before the notification was made by signing the slip and it was determined by the expert report that the signature on the slip did not belong to the plaintiff. It cannot be said that this unlawful expenditure is based on the plaintiff’s gross negligence and intention. Because, the plaintiff had his card stolen while travelling in the minibus, and there is no claim or evidence within the scope of the file that he had any negligence that would facilitate the theft of the card. According to the ordinary course of life, it is not possible for the plaintiff to check his credit card by constantly opening his wallet while travelling in the minibus. Again, the fact that the shopping was made with the signature on the slip shows that the plaintiff also securely protects the password etc. information. As such, it should be accepted that the plaintiff is liable for the damages arising from this unlawful use within twenty-four hours before the notification to the Bank in accordance with Article 12 of the Law No. 5464, limited to one hundred and fifty New Turkish Liras. For the reasons explained, ½ fault reduction cannot be made against the plaintiff in terms of other defendants. The court, with the wrong evaluation and contrary considerations, decided to dismiss the lawsuit against the bank in writing on the grounds that the plaintiff’s password was accessed in a short time, the password was not selected or kept securely, the plaintiff did not check whether the card was in his wallet, he allowed the card to be stolen through his carelessness, and therefore he was heavily negligent, and to make a reduction of ½ for the other defendants is against the procedure and the law and is a reason for reversal…”
The case was reversed with the justification and the file was returned to its place and at the end of the retrial, the court resisted the previous decision.

APPELLANTS

1- Plaintiff attorney
2- Defendants … and Murat Doğan

DECISION OF THE GENERAL ASSEMBLY OF LAW

After it was understood that the decision of resistance was appealed in due time and the documents in the file were read, the necessity was discussed:
The lawsuit is related to the compensation claim.
The plaintiff’s attorney stated that the Akbank Axess credit card owned by his client was stolen on 14.03.2005 between 14:00-14:30 while travelling in a minibus between Ankara Asfaltı Bostancı-Maltepe road, that as soon as he noticed the situation, he reported the situation to the bank as of 14:43, that at the time of the theft report, a purchase of 4.000TL was made from İçerenköy Doğan Kuruyemiş, which was owned by the defendant … and operated by the other defendant …. 000TL from İçerenköy Doğan Kuruyemiş, which was owned by the defendant … and operated by the other defendant …, despite this, only 750TL was undertaken by the bank and the balance expenditure had to be paid by the client, and the defendant … was unjustly seized by the Kadıköy 2nd Assize Court dated 24.11.2005. 2005 dated decision of Kadıköy 2. High Criminal Court for the offence of fraud by passing the unjustly seized credit card through the pos device at the workplace and by issuing false documents as if a purchase had been made, and that the defendant bank was negligent and responsible for not refraining from paying the unjust expenditure related to the card, which it knew was stolen, to the persons who committed the offence as if the theft had never been reported, and that 5. 000TL non-pecuniary damages and 40% denial compensation of the money that had to be paid and 145,30TL notice fee, together with a total of 3.420,30TL, jointly and severally.
The Defendant Bank’s attorney stated that the plaintiff was negligent by not exercising due care and diligence in protecting his credit card, that the responsibility of the client bank arose after the stolen transaction was notified to him, and that the transaction subject to the lawsuit was made 4 minutes before the 14. 43 minutes before the theft notification was made, for this reason, the bank covered 750TL of the cardholder’s loss as a sign of goodwill while the bank had no responsibility, the workplace subject to the lawsuit did not have a member workplace agreement with the client bank, the POS device belonged to another bank, there could not be a situation such as blocking or not paying to the relevant bank in transactions made with an open card by obtaining authorisation within the rules between banks, arguing that the conditions for non-pecuniary damages did not occur and demanded a decision to dismiss the lawsuit.
The defendant … and … attorneys, on the other hand, argued that the criminal proceedings have not yet been finalised and that their client … ‘s presence in the shop on the date of the incident could not even be proved, despite this, he was punished on the basis of slander and by playing with his honour, the shop where the shopping was done was also a liquor dealer, for this reason, high value purchases were always made in this workplace, especially on extraordinary days, celebrations or upon the demands of restaurants with alcohol, such purchases were ordinary purchases for a liquor dealer, The plaintiffs argued that the identity check was definitely carried out in the shopping made in this workplace, but the controls were not always sufficient against malicious persons, that similar problems can occur in almost every workplace where POS machines are available, that the plaintiff who had his card stolen was negligent by not fulfilling his duty to keep it properly, that the request for 40% compensation has no place in the law in terms of the case at hand, and that the conditions for non-pecuniary damages did not occur.
The court stated that the bank can only be liable for the transactions to be made after the notification of the theft of the card, that the cardholder was grossly negligent for not fulfilling the card protection obligation as required, and therefore cannot benefit from the regulation in Article 12 of the Bank Cards and Credit Cards Law No. 5464. In the evaluation made in terms of the other defendants, considering that the defendant bank undertook 750TL in terms of transactions that took place in the last twenty-four hours before the stolen notification by doing more than its part, the request should be rejected in terms of the defendant bank; In the evaluation made in terms of the other defendants, it is necessary to accept the responsibility of the member merchants, especially by not checking the identity, because they caused the shopping with the stolen credit card, but the plaintiff also allowed the card in his custody to be stolen due to his carelessness and he was at fault in the incident, therefore, it would be appropriate for them to bear the damage in half, and with the partial acceptance of the request for financial compensation for the defendant real persons, 1. 645,30TL to be collected from these defendants, and since the conditions were not met, it was decided to reject the request for non-pecuniary damages and the requests for more.
Upon the appeal of the plaintiff’s attorney and the defendants … and Murat Doğan’s attorney, the judgement was reversed by the Special Chamber with the reasons written in the title of the judgement above.
Against the reversal decision, the local court decided to resist by repeating the reasons of the first decision.

The judgement of reversal was appealed by the plaintiff’s counsel and the defendants … and Murat Doğan’s counsel.
I- All appellate objections raised by these defendants against the decision of the Local Court that the defendants … and Murat Doğan had fault and responsibility in the incident subject to the lawsuit, and the appellate objections of the plaintiff’s attorney regarding the non-pecuniary damages and 40% denial compensation rejected by the court have been rejected in the first paragraph of the Special Chamber’s reversal decision written above, and thus, the aforementioned parts of the first judgement have become final for the parties and these issues have ceased to be a matter of dispute between the local court and the Special Chamber.
As such, it is necessary to decide to reject all of the appellate objections of the defendant … and Murat Doğan’s attorneys and the plaintiff’s attorney’s appellate objections other than the following sub-paragraph due to the lack of legal interest.
II- The examination of the appellate objections of the plaintiff’s counsel other than those stated in subparagraph (I) above:
The dispute that came before the General Assembly of Civil Chambers by way of resisting; whether the defendant bank has a responsibility other than 750TL that it undertook to pay in the incident where the credit card belonging to the plaintiff was stolen and taken away, whether the plaintiff’s competing fault can be accepted together with the other defendants … and Murat Doğan, and according to the result to be reached here, whether it is appropriate for the local court to completely reject the financial compensation claim in terms of the defendant bank, and whether it is appropriate to decide by reducing the compensation by half in terms of the other defendants, on the grounds that the plaintiff also has a fault.
In the solution of the dispute, it will be useful to examine the distribution of the responsibility for the damage arising from the unlawful use of the credit card by the third party separately for the parties of the case.
The number of credit card users and their expenditures have been gradually increasing in our country since 1987. Despite this, the first legal regulation on credit cards in our law was made with Article 10/A added to the Law No. 4077 on the Protection of Consumers with the Law No. 4822 in 2003. However, this regulation is only for the protection of consumers in relation to credit cards and consumer loans, in other words, it is a regulation with a limited scope and does not contain any provisions on the point of resistance.
The establishment and functioning of debit and credit cards and card systems, the parties to the card relationship, the rights, obligations and responsibilities of the parties and the formation of a holistic legal infrastructure that ensures the control of the system could only be achieved with the “Bank Cards and Credit Cards Law” (BKKK) numbered 5464, which entered into force on 01.03.2006 (Bahtiyar, M.: Legal Liability for Unfair Use of the Card According to the Bank Cards and Credit Cards Law, IÜHFM C.LXXI, S.2, p.71, access: http://dergipark….tr/download/article-file/97826).
According to Article 12 of the aforementioned Law titled “Unlawful use of the card and insurance”, in case of loss or theft of the card, the cardholder may be held liable for the damages arising from the unlawful use of the card within twenty-four hours prior to the notification to be made, limited to one hundred and fifty Turkish Liras; in cases where the unlawful use is based on the gross negligence or intent of the holder or in cases where the notification is not made, the liability shall be entirely borne by the cardholder.
Prior to the enactment of the BKKK No. 5464, since there was no regulation in consumer law on this issue, the resolution of disputes arising from the unfair use of credit cards was only possible within the framework of the general provisions of the commercial law and the law of obligations.
When the legal liabilities of banks are analysed within this framework and limited to the point of dispute;
Banks are institutions that are under the intensive supervision and intervention of the state and can operate subject to licences and provided that they comply with the special principles determined for them. This situation, which is specific to the banking sector, causes the masses of people who are in contact with banks to have a special sense of trust towards banks. As long as it is worthy of legal protection, this trust obliges banks to be subject to different legal liability rules than other commercial enterprises and classical company types (Battal, A.: The Legal Liability of Banks in the Light of Trust Institution Qualification, Ankara 2001, p. 1).
Due to this trust in the eyes of the public, banks are under a more qualified duty of care in their transactions than the prudent behaviour of an ordinary merchant (Turkish Commercial Code No. 6762, Art. 20/2).

As a matter of fact, considering Article 99 of the Code of Obligations (CO) No. 818, which should be applied in the dispute as of the effective date, and the regulation in Article 115 of the Turkish Code of Obligations (TCO) No. 6098, which entered into force later; banks may be liable for even the slightest defects in the services they provide, since their activities are subject to licence and require expertise.
One of the services provided by banks can be defined as “a payment and credit instrument that allows the cardholder to purchase goods and services from certain merchants without paying cash and to withdraw credit from bank branches and automatic cash withdrawal devices” (Yılmaz, E.: Türkiye’de Kredi Kart Uygulaması ve Ekonomik Etkileri, İstanbul 2000, p.124).
Within the scope of the legal relationship in the form of a framework contract, which gives rise to a continuous debt relationship between the bank and the cardholder, certain obligations are imposed on the cardholder, the bank and the business place that owns the POS device where the credit card is processed.
In particular, the fact that credit card agreements between the customer and the card issuer are atypical contracts of performance of work, which partly contain elements of work, partly service, and partly agency (Atamer, M.Y.: Who will bear the damages arising from the unlawful use of the credit card by a third party?, Bilgi Toplumunda Hukuk-Ünal Tekinalp’e Armağan, İstanbul 2003, C.1, p. 1002) and the rule in the second subparagraph of Article 386 of the Code of Civil Procedure stating that the provisions of agency shall apply to the agreements relating to the performance of work that are not expressly regulated by the law, the basis of the contractual liability of banks is evaluated within the framework of the provisions of the agency agreement in many disputes in the established practice.
At this point, it would be useful to briefly mention the nature of the power of attorney agreement.
“Power of Attorney Agreement”, which is one of the agreements giving rise to obligations, is defined in Article 386/1 of the Code of Obligations (CO) No. 818, which should be applied in the dispute as of the effective date, as follows: “Power of attorney is a contract whereby the agent undertakes the management of the work entrusted to him in the contract or the performance of the service he undertakes.”
As can be understood from this definition, the elements of an attorneyship contract can be listed as; the attorney undertaking the obligation to perform a work, the fulfilment of the obligation to perform the work in accordance with the interest of another person and in accordance with his will, the attorney undertaking the act of performance, not the result of the performance, and acting independently while fulfilling the obligation to perform the work, and the agreement of a fee for this performance, although it is not obligatory.
In addition to these, one of the most important obligations of the attorney in power of attorney agreements based on the principle of trust is the duty of loyalty.
The duty of loyalty, diligence and secrecy is regulated under Article 390/2 of the Code of Civil Procedure, which states that “the agent is obliged to perform the power of attorney in a good manner towards the principal”.
The duty of loyalty can be deduced from the fact that the agent performs a work that belongs to another person, not to himself, and that acting in accordance with the interests and will of the principal is a mandatory element of the power of attorney. Pursuant to this obligation, the attorney is obliged to protect and safeguard the interests of the principal in accordance with the purpose of the contract, both during the continuation of the power of attorney and after the termination of the power of attorney. Due to this obligation, the attorney must always act in the best interests of the principal and direct his/her behaviour according to the results that the principal wishes to achieve through this contract.
In other words, in accordance with the duty of loyalty, the attorney is obliged to act for the benefit of the principal and to refrain from behaviours that may harm the principal. The duty of loyalty arises even if there is no explicit provision in the contract on how to fulfil the power of attorney and there is no instruction from the principal.
As a matter of fact, in the concrete dispute, in this framework, it is clear that in addition to the duty of care owed to the card issuer and member merchants in order to prevent the unlawful use of the credit card by third parties, the cardholder will also have certain obligations such as protecting and preserving the card, informing the bank as soon as possible as soon as he becomes aware of the misuse of the card, and otherwise, the cardholder who does not act in accordance with the contractual duty of care will be liable for the damage incurred.

In cases where the cardholder is not at fault for the card falling into the hands of malicious persons, the card issuers bear the risk of unlawful use (Atamer, p.1019). In the face of the fact that the credit card system is a system that is extremely open to misuse, since the cardholder customer does not actually have the will of the bank to make a payment to a third party through the use of the stolen credit card, it will be necessary for the banks to make contracts containing general transaction terms in such a way that this risk is completely assigned to the customer; in this way, in the event that the already weak party of the contract is victimised disproportionately and a deviation that violates the fairness of the contract is detected, it will be necessary to accept that the relevant contract provision is null and void due to violation of public order.
At this point, in order to discuss the fault status of the plaintiff, the nature of the offence of which he is the victim must be revealed.
Kadıköy 2. From the documents related to the criminal case numbered 2005/220 Esas of the Kadıköy 2nd High Criminal Court, it is seen that the plaintiff consumer had his wallet stolen as a victim of pickpocketing in the public transport vehicle he boarded on the date of the incident, even at the same time, another person in the same vehicle was similarly victimised and his credit card was stolen by the defendants … and Murat Doğan, but the perpetrator remained unknown in terms of the offence of pickpocketing, because … was acquitted due to the lack of evidence showing that he committed the offence of theft, and it is understood that the public case was dismissed for this theft, which expired at the appeal stage, and for the offences of fraud by using the bank as an instrument, for which the court imposed a sentence of conviction.
Article 141 of the Turkish Criminal Code No. 5237 (TCK) accepted the taking of a movable property belonging to another person without the consent of the possessor from where it is located in order to benefit himself or someone else as the basic form of the theft crime, and in subparagraph (b) of paragraph 2 of Article 142 of the same Law. In subparagraph (b) of paragraph 2 of Article 142 of the same Code, the offence of theft committed by taking the movable property in the hand or on the body or with special skill is sanctioned as a qualified theft offence, and in the last sentence of the same paragraph; the commission of the offence specified in subparagraph (b) against a person who is physically or mentally incapable of defending himself/herself is considered as an aggravating reason for the punishment.
In the doctrine, it is stated that the aforementioned subparagraph sanctions the acts of snatching and pickpocketing by taking advantage of the victim’s absent-mindedness and the acts of snatching and pickpocketing, which are carried out with special skills on the person in the same way, but the expressions of snatching and pickpocketing are not included in the text of the law (Centel, N./Zafer, H./ Çakmut, Ö.; Crimes Committed Against Persons, 2017, p. 312 et seq.).
Since the TPC No. 765, which was in force as of the date of the offence, did not regulate this qualification separately, the act was evaluated within the scope of paragraph 1 of Article 491 of the same Code.
As a matter of fact, these issues were also explained in the decision of the Criminal General Assembly of the Court of Cassation dated 16.01.2018 and numbered 2017/13-588 E., 2018/6 K.
When the concrete case is evaluated in the light of all these explanations;
According to the explained legal regulations and the way the concrete event occurred, there is no evidence reflected in the scope of the file that the plaintiff consumer has a defective action in the preservation and storage of the card, and the plaintiff fulfilled his responsibility in this respect by immediately notifying the bank as soon as he realised the situation. In this case, there is no fault attributable to the plaintiff in the damage incurred. As such, it is not appropriate for the court to reduce the amount of compensation for which the defendants … and Murat Doğan are responsible on the contrary grounds, and while it is necessary to comply with the decision of the Special Chamber pointing in this direction, the decision to resist as written is contrary to the law and requires the judgement to be reversed in this respect.
In addition, since it is not possible to apply the Law No. 5464, which entered into force after the date of the incident in which the dispute arose, to the concrete case, the Special Chamber’s reversal of the Special Chamber’s decision that Article 12 of the aforementioned Law should be taken into consideration for the defendant bank. Although the reversal decision that Article 12 of the aforementioned Law should be taken into consideration is not correct; In the event that it is understood that a very high amount of purchases were made with only the signature and according to the card usage habits of the plaintiff consumer, within the framework of the principles explained in detail above, it is necessary to investigate whether the bank used a system that is not sufficient according to the conditions of that day and has security weaknesses as of the date of the event, if necessary, by expert experts, and to decide according to the result, while the plaintiff is considered to be seriously negligent and the decision to reject the request for financial compensation in terms of the Bank on the grounds that the defendant bank is not responsible is also contrary to the law.

Consequently, the judgement of resistance should be reversed with this different justification.

CONCLUSION:

For the reasons explained in subparagraph (I) above, all appellate objections of the attorneys for the defendants … and Murat Doğan and other appellate objections of the plaintiff’s attorney other than the scope of subparagraph (II) are rejected due to the lack of legal interest, and the appellate objections of the plaintiff’s attorney for the amended grounds and reasons explained in subparagraph (II) above are accepted, and the judgement of resistance is reversed on the grounds that the defendants … and Murat Doğan are the defendants. and Murat Doğan for the reasons shown in the Special Chamber’s reversal decision, and for the defendant Bank for the reasons and reasons explained in the different reasons and reasons explained, in favour of the plaintiff pursuant to Article 429 of the Code of Civil Procedure No. 1086, which is being applied according to the Provisional Article 3 of the Code of Civil Procedure No. 6100. In accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied in accordance with the Provisional Article 3 of the Code of Civil Procedure No. 6100, it was decided unanimously and definitively on 14.02.2019, with the decision to return the pre-appeal fee to the depositor if requested, and to be closed for decision correction in accordance with Article 440/III-1 of the same Code.

 

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