Summary:
In the concrete case, after the check was submitted by the creditor on the basis of the 25.05.2010 TL check bond lien, enforcement proceedings were initiated by going to the debtor, entering turnover between the creditor and the check, fake endorsements were tracked, the authorized card holder was not notified to the bank of the creditor concerned by the court, which requested tracking and cancellation, and it is observed that the copy of the check is not included in the turnover due to the Decrees of the check cancellation, and the withdrawal is not followed up.
The in examination of the approved copy of the check on a follow-up basis, the first turnover belongs to the follow-up creditor M., beneficiary T. it was understood that the flour was included in the turnover December, the check was submitted to the bank on maturity, its qualifications were complete, and the creditor was the authorized bearer.
In this case, it is a mistake for the court to make a written decision by accepting the above legal regulation and the information on the original of the check, taking into account whether it is worth the evil eye, by examining the photocopy of the subpoena from the bank in writing, instead of deciding to reject the complaint in terms of this check.
TC
High
General Assembly of Law
Decision No: 2014/-2060
Decision No:2014/976
K. Date:26.11.2014
At the end of the trial held in the case filed between the parties from the “objection to enforcement proceedings” case; Istanbul 11 Dec. gap. 05.04.2011 day, numbered 2011/176 E – 2011/431 K, upon the partial acceptance of the case, upon the request of the attorneys of the parties to review the decision, the Court of Cassation 12. 20.02.2012 day of the Presidency of the Legal Department, 2011/19590 E. – With the decision No. 4158 K dated 2012/2012;
“… 1)REJECTION of the debtor’s objections taking into account the claims and defenses of the parties, the information and documents contained in the file and the reasons for the decision;
2) As for the creditor’s objections to the appeal,:
Article 702 of the TCC. in the article, the provision ”A person who holds a check whose turnover is possible, even if his last turnover is a white turnover, is considered a bona fide owner if his right is understood from separate and interconnected endorsements …” is included.
Again, it is possible to apply to the debtors of the application by bypassing the quotas on the bills of exchange that have been submitted and have seen various turnovers, and the price of the bill can be collected and refunded. In this case, there is no need to have the signature of the return turnover on the promissory note again.
The person who has a signature on the turnover line and holds the stock is considered an authorized bearer.
In the concrete case, it appears that the creditor initiated 25,000 negotiable instruments dated 25.05.2010 to collect the check related to the check by going down the path of foreclosure, after collecting the check, the debtor entered into a turnover between the creditor and the bank, followed up with fake endorsements, was not an authorized cardholder, requested tracking and cancellation, and was not currently involved in the turnover in relation to the Decrees of the creditor’s bank, since it was decided to cancel the check, so the tracking was done in terms of withdrawals.
The in examination of the approved copy of the check on a follow-up basis, the first turnover belongs to the follow-up creditor M., beneficiary T. it was understood that the flour was included in the turnover December, the check was submitted to the bank on maturity, its qualifications were complete, and the creditor was the authorized bearer.
In this case, it is wrong for the court to accept the above legal regulation and the information about the original of the check in writing, to avoid the evil eye, to examine the photocopy of the subpoena from the bank in writing, to decide to dismiss the case instead of deciding to dismiss the complaint in terms of this check …” on the grounds that
it was overturned and the file was returned to its place, but as a result of the retrial, the court resisted the previous decision.
PLAINTIFF: The defendant (creditor) by acting
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision to resist was appealed in the examination conducted by the General Assembly of Law, and the document in the file was read, the following issue was discussed:
The case relates to the request for objection to the enforcement proceedings (objection to debt) initiated through foreclosure specific to foreign exchange notes.
The plaintiff’s(debtor’s) attorney; the plaintiff’s attorney claimed that the bills went unrequited with the lawsuit petition filed on 05.05.2010 in pursuit of the private pledge right, the check dated 25.05.2010 was withdrawn as a loss on the check, the creditor made turnover after its submission, the checks are not in the nature of being in foreign currency due to the absence of signatures on legitimate bearer, cashier and non-turnover checks, therefore the decision was prosecuted with a follow-up and cancellation request.
As a result of the examination conducted by the court before the opening of the hearing, a photocopy of the check dated 25.05.2010 was brought from the bank during the presentation, in this document the follow-up creditor M.T.on the grounds that there is no turnover, there is an intermediate turnover in the photocopy contained in the tracking file, therefore the tracking creditor is not a legitimate holder of this check, the tracking from the point of view of this check should be canceled in accordance with Article 170/a-2 of the CCP, it was decided to partially accept the case, the Decrees were overturned by the Special Department for the reasons explained above upon the appeal of the party’s attorneys.
The decision to resist was made by the Local Court by extending the previous grounds, and the decision to resist was appealed by the defendant (creditor) attorney.
The dispute before the General Assembly of the Law is collected at the point where the defendant (creditor) is the authorized holder, according to the conclusion to be reached from here, whether there is a turnover of the follow-up creditor in the check dated 25.05.2010.
In particular, taking into account the information in the original check, the mutual claims and defenses of the parties, the minutes and evidence contained in the file, the grounds for the cancellation decision into account, the first turnover belongs to the beneficiary, the follow-up creditor, M .T.since it is understood that it is included in the scope of turnover, it is necessary to comply with the decision to disrupt the Special Chamber made by the General Assembly of the Law, and the decision to resist should be overturned due to the fact that resisting the previous decision is contrary to procedure and the law.
CONCLUSION:
The defendant’s (creditor’s) attorney’s decision not to accept the appeal request is based on the reasons shown in the Private Office’s decision to overturn Law No. 6217 30. it was adopted by the General Assembly in accordance with the article. 429 of the Code of Civil Procedure No. 1086, which is applied with the reference to the “Provisional article 3” added to the Code of Civil Procedure No. 6100. according to the article, on 26.11.2014, it was unanimously decided to cancel it and return the claim advance fee to the depositor upon request.