LAW NUMBER: 5464
BANK CARDS AND CREDIT CARDS LAW
Unauthorized Use of the Card and Insurance
ARTICLE 12- In the event of 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 notification, up to a limit of one hundred and fifty New Turkish Liras. This limit shall not apply if the unlawful use is based on the cardholder’s gross negligence or intent, or if no notification is made.
The issuing institution is obliged to insure the cardholder’s liability in the amount of one hundred and fifty New Turkish Liras specified in the first paragraph, subject to the request being made and the relevant insurance premium being paid. 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 Requirement
Article 16 – If the cardholder needs to identify themselves using the card and card code number, password, or ID number to submit a document for use, they must take the necessary measures to securely protect this information and prevent its use by others. In the event of loss, theft, or unauthorized disclosure of the card, the cardholder must immediately notify the card-issuing institution.
The cardholder is obliged to notify the card-issuing institution of any changes in address within fifteen days of the change.
TC
YÜCE
Law Office
BASE NO: 2016/15753
DECISION NO: 2018/813
DECISION DATE: 21.2.2018
IN THE EVENT OF THEFT OR FORCED OBTAINING OF THE ATM OR CREDIT CARD UNDER THREAT, OR IF THE CARDHOLDER NOTIFIES THE BANK WITHIN 24 HOURS OF SUCH AN EVENT, THE CARDHOLDER IS ONLY LIABLE FOR THE FIRST 150 TL OF THE IMPROPERLY WITHDRAWN AMOUNT.
THE MONEY WITHDRAWN FROM THE ACCOUNT MUST BE REFUNDED TO THE CARDHOLDER BY THE BANK, EVEN IF THE AGREEMENT STATES OTHERWISE. NO DEFECT DISCOUNT MAY BE APPLIED TO THE CARDHOLDER.
Following the hearing of the case between the parties, the file was reviewed, and it was decided to hear the case and conduct the necessary investigation. Upon the defendant’s attorney filing an appeal within the period in which the case was accepted, the file was reopened based on the reasons stated in the grounds for the decision.
Decision
The plaintiff’s attorney claimed that the plaintiff’s credit card was forcibly taken by the parties in the case, that the card’s PIN was obtained under threat of a weapon, that a cash withdrawal was made from the defendant bank’s ATM on the same day, that the defendant notified the bank, that the defendant bank owes the plaintiff the amount withdrawn, and that if the plaintiff does not pay the amount of cash received, the plaintiff would file a lawsuit to collect the amount received by the plaintiff with interest from the payment date and requested the case be dismissed.
The defendant’s attorney argued that the plaintiff was responsible for protecting the credit card and its PIN, that no notification was made to the defendant’s bank, and that the defendant could not be held liable for defective goods, requesting that the case be dismissed.
According to Article 12 of Law No. 5464, if the court determines that the plaintiff has been robbed, notification must be made to the bank within 24 hours of the wrongful act. According to the article, the case was accepted, and it was decided that the amount collected from the defendant due to the unlawful use of the card was unlawful and that the payments made by the plaintiff should be refunded with interest. The defendant’s representative appealed the ruling.
CONCLUSION: Considering the items in the file, the evidence on which the decision is based, and the reasons, since there is no inaccuracy in the assessment of evidence, all objections deemed unfounded by the defendant’s attorney are rejected, and the ruling, which is in accordance with the procedure and the law, is APPROVED. and the approval fee specified below shall be collected from the defendant who appealed. This decision was made unanimously on 21/02/2018.
TC
YÜCE
Law Office
FILE NO: 2015/18393
DECISION NO: 8120/2016
DECISION DATE: 3.5.2016
Following the trial of the case between the parties concerning exoneration/restitution, the file was reviewed, and upon deliberation and finding it necessary, a decision was rendered partially in favor of the plaintiff for the reasons stated in the decision. Upon the defendant’s appeal within the time limit, the file was reviewed again, and a decision was rendered.
Decision
T he plaintiff’s attorney received his client’s credit card and salary card between 18:00 and 20:30 on 26.09.2010, immediately reported the theft of his vehicle to the bank by telephone, but nevertheless, 3,080 TL was loaded onto the salary card and 1,900 TL onto the credit card by the management board, A total of 4,980 TL was withdrawn without the client’s consent. Th e money was in cash, but the daily cash withdrawal limit at the ATM was 800 TL. The amount exceeded the daily cash withdrawal limit. Th e bank did not issue a warning to the defendant. The client failed to ensure the security of the password. Due to the defendant’s threat of enforcement, the client was forced to pay this money to the bank.
Pursuant to Article 12 of Law No. 5464, the cardholder is liable for damages arising from unlawful use occurring within 24 hours prior to the notification, up to a limit of 150 TL. The client has filed a lawsuit to determine that no claim exists and to recover the 4,980 -TL, which was collected unjustly, with legal interest accruing from the date of payment.
According to Article 8 of the credit card agreement between the parties, in the event of theft of the card, the cardholder must immediately notify the bank of the situation, and the cardholder will be liable until notification is made. Again, according to Article 10, the plaintiff is responsible for protecting the PIN and card, the charges were made before the plaintiff’s notification, the client cannot be held liable, hostility should be directed towards those who obtained unjust enrichment, and the cardholder will be liable if the notification is made late, requesting that the lawsuit be dismissed.
As a result of the trial conducted by the court, based on the plaintiff’s statement made on 27.09.2010 – 26.09.2010 regarding the theft of his credit card and bank card, the bank cards and credit cards transactions law stipulates that within 24 hours, the plaintiff’s liability is limited to 12.md. and that the defendant was liable for the transactions made from the date of notification by the bank. Pursuant to the contract between the parties, the defendant was ordered to pay the plaintiff the remaining balance after deducting the 4,980 TL charged to the cards accepted partially from the plaintiff’s account and the legal interest to be applied from the date of the lawsuit. It was decided to collect the amount after deducting the 150 TL for which the defendant is liable, and the defendant’s representative appealed the ruling.
CONCLUSION: Considering the items in the file, the evidence on which the decision is based, and the reasons of necessity, there is no error in the assessment of evidence, and the decision, given in accordance with procedure and law, is APPROVED, and all appeals deemed unfounded by the defendant’s attorney are rejected, unanimously decided on 03/05/2016.
TC
YÜCE
Law Office
CASE NO. 2013/32840
DECISION NO. 2014/18798
DATE OF DECISION: 12.6.2014
5464/m.12,15,16,19
PROCEEDINGS: Following the trial of the claim for payment between the parties, the plaintiff and defendant’s attorneys filed an appeal within the prescribed time limit against the decision to dismiss the case on the grounds stated in the statement of claim. The case file was reviewed and the necessary examination was conducted.
Decision
The plaintiff reported that the credit card he received from the defendant bank was stolen while traveling by minibus on March 14, 2005, and reported the situation to the defendant bank by telephone at 14:43 and then in writing. The defendant Sh. reported that the credit card operated by the defendant M. was used to make a purchase of dry nuts worth TL 4,000 from the defendant’s bank, and that since the purchase was made before the warning, his bank could not cover this amount.
T he defendant stated that purchases worth TL 4,000 were made from the defendant’s bank’s dry nuts, that the defendant’s bank could not cover this amount because it was made before the warning, that the defendant’s bank only added TL 750 liability despite the fact that there was no fault in the theft and use of the credit card, that the defendant had to pay 3,275 TL to the bank, and that the other defendant, Ş., claimed that the defendant was tried in a criminal court for fraud due to this act and was sentenced, arguing that the defendants were jointly and severally liable and requesting that the defendants be jointly and severally liable for a total of 3,420 TL, including the warning fee, 30 TL in moral damages, and 5,000 TL in moral damages jointly and severally by the defendants.
The defendant bank stated that, according to Article 19 of the contract, the transaction in question took place at 14:39, four minutes before the plaintiff’s notification, and requested that the case be dismissed, arguing that it was not responsible for expenses incurred before the notification reached the bank.
Defendant M. requested that the case be dismissed, arguing that it was a routine transaction, that there was no defect in the card, and that the plaintiff was responsible for not keeping his credit card carefully.
The court dismissed the lawsuit filed by the defendant against the bank, accepted the lawsuit against the other defendants, and ruled that the defendants should jointly and severally pay the plaintiff the accrued partial interest of 1,645.30 TL from the date of the lawsuit, along with interest, and pay the previously due and material damages, dismissing the claim. The judgment was appealed by the plaintiff and the defendants.
1-) Since there is no error in the case file records, the evidence on which the decision is based, the mandatory reasons under the law, and especially the assessment of the evidence, the other appeals of the defendant and the plaintiff, except for the scope of the following paragraph, must be rejected.
2-) Due to the theft of the credit card and its use by third parties, the plaintiff argued that the expenditure was unlawful, claiming that the defendant did not exercise due care in protecting and storing the passwords and credit card information and that the bank was not responsible for the theft that occurred before the notification, arguing that the expenditure should be held liable.
It is established by the scope of the file that the plaintiff’s Akbank Axess credit card was stolen on March 14, 2005, that the defendant reported the theft to the defendant bank at 14:43, and that the subject matter of the lawsuit, a purchase of 4,000 TL, was made at 14:39.
The provisions of Law No. 5464 on Bank Cards and Credit Cards must be examined to resolve the dispute between the parties.
Article 15, titled “Obligations of Cardholders,” states, “The responsibility arising from the use of the card belongs to the cardholder from the moment the contract is signed and the card is transferred to them or the card number, which is not physically present, is learned.”
Article 16, titled “Notification Obligation,” states: “If a document deposit requires the cardholder to use their card and card code number, password, or another method of identification, they must take the necessary measures to securely protect this information and prevent its use by others. In the event of the loss, theft, or unauthorized disclosure of the card, the cardholder must immediately notify the issuing institution of the situation in all cases.”
12. The article titled “Unlawful Use of the Card and Insurance” states: “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 notification, limited to one hundred and fifty New Turkish Liras. This limit shall not apply if the unlawful use is based on the holder’s gross negligence or intent, or if no notification is made.”
Again, the credit card agreement between the parties was signed on December 19, and Article states: “In the event of loss, theft, or damage to the credit card, the member or supplementary cardholder is obliged to immediately notify the bank by telephone and then confirm in writing. The disclosure of this credit card, its password, or credit card number to another member using an additional card, the fact that all liability arising from transactions belongs to the holder, and the notification to the bank of the credit card receipt obtained from the bank for the closure of the credit card for use, the member and additional cardholder cannot be held liable for transactions made by third parties within or outside the country.”
As can be seen, the credit card holder is obligated to protect and safeguard the credit card entrusted to them under the aforementioned law and the information related to the use of this card from the moment they sign the contract with the bank and the card becomes their property. However, pursuant to Law No. 5464, in the event of loss or theft of the credit card or this information, no compensation shall be paid for damages arising from unlawful use occurring within twenty-four hours prior to the bank’s notification, limited to one hundred and
fifty New Turkish Liras, unless there is gross negligence or intent. In this case, the provision of Article 12 of the Law remains reserved. Its nature must be assessed according to the characteristics of each specific case. In the specific case, it is understood that the plaintiff fulfilled his obligation to notify the defendant Bank, that he made a purchase of 4,000 TL four minutes before the notification by signing the receipt, and that the signature on the receipt does not belong to the plaintiff, as determined by the expert report.
It cannot be said that this unlawful expenditure resulted from the plaintiff’s gross negligence or intent. There is no claim or evidence in the file that the plaintiff, who had his card stolen while traveling on a minibus, 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 by signing indicates that the plaintiff kept his password and other information secure. Therefore, 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, limited to one hundred and fifty New Turkish Liras. For the reasons explained, a ½ fault reduction cannot be applied to the plaintiff in relation to the other defendants.
The court found that the plaintiff’s password was obtained through incorrect evaluation and other means within a short period of time, that the password was not chosen or stored securely, that the plaintiff’s card was not checked in his wallet, that the card was stolen as a result of negligence, and therefore the plaintiff was grossly negligent, and that a 1/2 reduction from the other defendants was contrary to procedure and law and constituted a cause of violation, and therefore decided to reject the case in writing on behalf of the bank.
CONCLUSION:
For the reasons explained in paragraph 1 above, all defendants rejected the plaintiff’s other appeals, and for the reasons explained in paragraph 2, the ruling was REVERSED in favor of the plaintiff, unanimously decided on 12.06.2014, and the path to appeal the decision was closed in accordance with Article 440/III-2 of the SPK.