Objection to Signature - Creditor's Position - Bad Faith Compensation
SUMMARY: The creditor, who is in a position to know whether the signature on the check subject to the follow-up belongs to the debtor or not, should be considered grossly negligent and bad faith compensation should be awarded in favor of the debtor.
12th Civil Chamber of the Court of Cassation
E. 2018 / 11549 K .2019 / 1231 T. 04.02.2019
The creditor initiated an execution proceeding by way of attachment specific to bills of exchange based on the check, the debtor applied to the execution court and objected to the signature and the debt; as a result of the trial held after the court complied with the reversal order of our Chamber dated 18.04.2017 and numbered 2016/14056 E. - 2017/5941 K., the signature objection was accepted and the debtor ...Denizcilik Yönetim Dan.Tur. Sey. San. Tic. Ltd. Şti. and the debtor's claim for compensation was rejected.
Article 170/last of the BEC stipulates that “...In the event that the enforcement court decides to accept the objection, it shall sentence the creditor to compensation not less than 20% of the receivable subject to the proceeding based on the bill and to a fine of 10% of the receivable, in case of bad faith or gross negligence in placing the bill in the proceeding...”.
In the concrete case, since the debtor appears to have received the check subject to the proceeding directly with the endorsement of the creditor, the creditor is in a position to know that the signature belongs to the debtor and should be considered at least grossly negligent in putting the check into proceedings.
In that case, while the court should have ruled for a compensation not less than 20% in favor of the debtor and a fine of 10% of the principal receivable, it is inappropriate to reject the request in this respect with the written justification.
CONCLUSION
With the acceptance of the debtor's appeal objections, it was unanimously decided on 04/02/2019, in accordance with Articles 366 of the EBL and 428 of the HUMK for the reasons written above, to return the prepaid fee upon request, to be open for decision correction within 10 days from the notification of the judgment.
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Bad Faith Compensation and Bad Faith Compensation - Question & Answer
Yes. The creditor is in a position to know whether the signature on the check belongs to the debtor when he endorses it or uses it for collection.
Debtor, by applying to the court of execution that the signature does not belong to him claim. The court will examine determines whether the signature is genuine or not by means of an expert report or other evidence.
If if it is determined that the signature on the check does not belong to the debtorthe debtor's claim against the debtor enforcement proceedings are stopped and the follow-up is canceled.
The Court usually expert reports with the product whether it is a manufacturing defect or user error investigates. If the producer has left a safety-essential part missing, product may be considered defective.