It is frequently witnessed that people are put into debt by forgering promissory notes in commercial and daily life. Persons who are shown as debtors on a promissory note without their own knowledge and will and without signing are faced with unjust and malicious execution proceedings or lawsuits. The person who is a victim of this situation must have it determined in court that the deed on which the receivable is based is fictitious.
Forgery means that the writing or signature on a document allegedly drawn up by the person is not accepted. For example; Claims that the signature on the deed is fictitious, does not belong to him/her, his/his own signature is imitated on the deed, it is a transfer signature, the deed has been tampered with (the writings have been tampered with, erased, protruded or scraped) are considered within the scope of the claim of forgery.
Both civil and criminal cases can be filed regarding the forgery of the deed. In this bulletin, general explanations about the legal cases filed regarding the forgery of the deed are made, and the examination of the alleged forgery in civil cases and the effect of this situation on the enforcement proceedings are emphasized.
1. Detection of Forgery of Ordinary Promissory Notes-Official Promissory Notes
The lawsuit to be filed with the allegation that the deed on which a receivable is based is counterfeit, is a kind of negative declaratory action in terms of its nature. Depending on whether the promissory note is a common or official bill, the way in which the claim of forgery is asserted varies. Ordinary promissory notes are bills prepared by the parties without the participation of an official or official. Official promissory notes, on the other hand, are promissory notes that are issued or approved in the presence of an official or official, such as a notary public, as well as the parties.
While a separate lawsuit can be filed for the forgery of ordinary bills, it is also possible to assert the claim of forgery as a preliminary issue within a filed lawsuit. However, if the allegation of forgery is asserted as a preliminary issue in the pending lawsuit, a separate and new lawsuit will no longer be filed in this regard. In the decision of the Supreme Court, this matter was expressed as follows;
“Considering article 208/3 of the Code of Civil Procedure numbered 6100, in the face of the alleged falsehood of the promissory note in the case being put forward as a preliminary issue in the other lawsuit, it was necessary to uphold the decision of the Regional Court of Justice in accordance with the procedure and law, since there is no legal benefit for the plaintiff in bringing this matter into a separate lawsuit. ”[1]
If an official bill is to be claimed to be forged, this issue cannot be put forward as a preliminary problem, and a separate lawsuit must be filed regarding the forgery of the bill. The reason for this situation is the trust in official securities.
The consequences of asserting the falsity of a common deed and an official deed are also regulated differently in the Code of Civil Procedure. According to the provision of Article 209/1 of the HMK, when the writing or signature on an ordinary bill is denied, that bill cannot be taken as a basis for any transaction until a decision is made on this issue. The proceedings are stopped and the court decision is awaited. However, if the writing or signature on an official deed is denied, this deed is considered valid until the forgery is determined by a court decision and can be taken as a basis for any transaction.
2. The Court’s Investigation on Alleged Fraud
Pursuant to the provision of Article 208/1 of the HMK, when a document is alleged to be false, the court takes the necessary measures to keep the document by writing and sealing the date it was submitted to the court. If the allegation of forgery is related to a signature or letter, the judge apologises for the claimant who denies the letter or signature in this case, and if he cannot reach a conclusion based on the information obtained in this way, he/she has the plaintiff write a letter and have it signed. If the plaintiff does not come to the court for these transactions, she/he is deemed to have accepted the letter or signature that she/ has denied. This is clearly stated in the invitation issued to her/him.
If it is not possible for the judge to come to a conclusion with these examinations, the court decides that the letter or signature be examined by the expert. Before the expert examination, samples of the petitioner’s letter or signature, if any, suitable for comparison, are brought from the relevant places. The expert also carries out her/him examination by comparing these samples. If more than one expert report is received for the examination and there is a conflict between them, the court must make a signature examination by the expert panel of three people consisting of graphology experts and take a detailed report that is suitable for the Supreme Court’s inspection and make a decision.
3. The Effect of Alleging the Forgery of the Signature on the Promissory Note to the Enforcement Proceedings
In case of objection to the signature on the deed subject to enforcement proceedings, the issue of whether to continue the enforcement proceedings is controversial, and there is no consensus in the relevant doctrine and judicial decisions. In some judicial decisions and dissenting votes, it is argued that if there is a promissory note that is alleged to be forged, it is argued that the enforcement proceedings should also be stopped in accordance with the provision of Article 209 of the CCP, since it stipulates that this deed should not be taken as a basis for any action. However, in a decision given by the 12th Civil Chamber of the Supreme Court Dated 14.09.2015 and numbered E. 2015/10540, K.2015/20832, and followed by the courts today, t is seen that the opposite view was adopted and the practice developed in this direction. The following statements are included in the decision;
“The Code of Civil Procedure No. 6100 can be applied in cases where there is no provision in the Enforcement and Bankruptcy Law, but in cases where there is a clear reference in the Enforcement and Bankruptcy Law or if it is not contrary to the special or general provisions of this law. In the light of these principles, the effect of Article 209/1 of the CCP On enforcement proceedings without judgment should be evaluated. According to this article, “when the writing or signature on a common bill is denied, that bill cannot be taken as a basis for any transaction until a decision is made on this matter.” There is no provision in the Enforcement and Bankruptcy Law regarding the necessity of applying this article in enforcement proceedings. Since the objection to the signature under the bill of exchange subject to the follow-up in the proceeding through the attachmen peculiar to bills of exchange is specifically regulated in Article 170 of the EBL, Article 209 of the CCP, which is the next general law, cannot be applied to the claim of forgery based on the reason for denial of signature. Objection to signature does not suspend enforcement proceedings other than sale pursuant to article 170/1 of the EBL. However, the enforcement court may decide to suspend the proceedings temporarily until its decision on the objection.
The conclusion that comes out of the decision is that the enforcement proceedings that have started will not be suspended in accordance with the provisions of the CCP regarding signature objections. Only the enforcement court can decide to suspend the enforcement proceedings. In the continuation of the same decision, attention was drawn to the change in the case-law regarding the way to be followed if there are objections to the debt other than the signature objection. According to this;
“While our Office was of the opinion that there is no regulation in the Execution and Bankruptcy Law, Article 209 of the Code of Civil Procedure should have been applied if the alleged forgery was based on a reason other than the signature objection, Later, the case-law was changed and it was adopted that the claim of falsity in the article on the promissory note is in the nature of an objection to the debt, and since this issue was regulated in EBL article 169/a, Article 209 of the CPC has no place to apply in this respect either.”
To summarize; As of today, it is accepted that the provision of Article 209 of the HMK cannot be applied regarding the cases of fraudulent deed in the Supreme Court of Appeals practice. Accordingly, objection to the signature or debt under the bill of exchange in the pursuit of the bills of exchange will be subject to the relevant articles 169 and 170 of the Execution and Bankruptcy Law. This means that objection to the writing or signature on the promissory note does not automatically prevent transactions such as lien, payment order notification in the proceeding through attachment peculiar to bills of exchange. Signature objection or debt objection, if any, can only prevent the sale of lien goods. However, until the court makes a decision, it may decide to stop the enforcement proceedings.
The Supreme Court decision is based on the assumption that there is a special law-general law relationship between the CCP and the EBL in terms of enforcement law, and there are also authors who argue the opposite of this view in the doctrine. Those who argue that both laws are in the nature of general law in their own regulatory areas, put forward the following arguments;
“The provision of HMK 209/1 is a special provision against the provision of article 72 of the EBL, which regulates negative declaratory actions. Because, the negative declaratory action in article 72 of the EBL can be opened with the allegation that the debt subject to enforcement proceeding has ended and based on any reason for silence that terminates the debt; However, one of these reasons, the case of alleged forgery, was separated by the legislator and specifically regulated in Article 209 of the CCP. Therefore, enforcement proceedings are also included within the scope of the provision “that bill cannot be taken as a basis for any transaction”, and the court is not required to issue an interim injunction for the suspension of enforcement proceedings. In this case, the proceedings will stop as per the law, upon submission of the document indicating that a forgery lawsuit has been filed for the cancellation of the deed constituting the basis for the enforcement proceeding, or that a claim of forgery has been submitted to the enforcement file.[2]
The practice of the Court of Cassation also differs from this view regarding interim injunctions;
“The fact that a decision has been made by the enforcement court regarding the claim subject to follow-up does not prevent the filing of a lawsuit against the same claim in the general courts. The negative declaratory action brought by the debtor based on the reason for forgery is a lawsuit within the scope of article 72 of the EBL, and the enforcement proceedings can be stopped with an interim injunction decision to be taken from the court in accordance with the procedure in the aforementioned article. A complaint filed with the public prosecutor’s office for the same reason and a lawsuit filed in the criminal court do not automatically suspend the enforcement proceedings and cannot be a protracted matter, just like the negative declaratory action filed due to fraud. However, the enforcement proceedings may be stopped, specific to the case of an injunction decision by the public prosecutor’s office or the criminal court.[3]
The following determinations are included in the same decision;
“Execution and Bankruptcy Law is the procedural law of enforcement and bankruptcy proceedings. The purpose of this branch of law is, on the one hand, to eliminate the difficulties that the debtor or third parties may cause in order for the debtor or third parties to recover his debt, and on the other hand, to find legal remedies that will enable the debtor to protect himself against malicious proceedings.In the meantime, to protect the interests of the third parties affected by the follow-up, to prevent the violation of human rights and freedoms during the follow-up proceedings. The most important source of enforcement and bankruptcy law is the Enforcement and Bankruptcy Law, which regulates the procedural provisions that must be applied from enforcement and bankruptcy proceedings to collection.
Since the objection to the signature under the bill of exchange subject to the follow-up is specifically regulated in Article 170 of the EBL, in the follow-up made through lien specific to bills of exchange, article 209 of the CPC, which is the next general law, cannot be applied to the claim of forgery based on the reason for denial of signature. The signature objection does not suspend the enforcement proceedings other than the sale pursuant to the 170/1 article of the EBL. However, the enforcement court may decide to suspend the proceedings temporarily until its decision on the objection. (Article 170/2 of the EBL), On the other hand, if the forgery claim is based on a reason other than the signature objection (falsity in the article), our Office is of the opinion that Article 209 of the CCP should be applied, since there is no regulation in the Enforcement and Bankruptcy Law. Later on, the case law was changed and it was adopted that the claim of falsity in the article on the promissory note was in the nature of an objection to the debt, and since this issue was regulated in article 169/a of the EBL, article 209 of the CCP was not applicable in this respect either. Since the enforcement court makes final judgments in terms of follow-up law by applying the special procedural rules regulated in the Enforcement and Bankruptcy Law, the decisions of the said court do not have the characteristics of a final judgment in material terms. For this reason, during the examination of the objection to the debt or signature, the lawsuits filed in the general courts based on the allegation of forgery cannot be put on hold, nor can it decide to suspend the proceedings. It can only decide to temporarily suspend the enforcement proceedings until the decision on the merits of the objection pursuant to article 169/a-2 of the EBL. In the light of the principles and rules explained above, claiming the falsity of the prosecuted bill before or after the proceeding becomes final does not result in the suspension of the proceeding pursuant to Article 209 of the CCP.
The aforementioned provision stipulates that the deed cannot be taken as a basis for any action regarding the lawsuits filed in the general courts, in other words, it cannot be used as evidence, and it has no effect on the enforcement proceedings.
Conclusion
In order to eliminate the grievances caused by the forged promissory note, it must be determined by a court decision that the promissory note is fake. The lawsuit to be filed in this regard will not automatically stop the enforcement proceedings. However, there is a possibility that the enforcement proceedings may be temporarily suspended by a judge’s decision.
You can contact our team if you want to learn more about the forgery of the bill.
Best Regards.
Solmaz Law and Consultancy Team.
References
Timuçin Muşul, (2016), İcra ve İflas Hukukunda Menfi Tespit ve İstirdat Davaları, Adalet Yayınevi, Ankara.
Talih Uyar/Alper Uyar/Cüneyt Uyar, (2015), Olumsuz (Menfi) Tespit ve Geri Alma (İstirdat) Davaları, Bilge Yayıncılık, Ankara, s.84-91.
12nd Civil Chamber of the Supreme Court, E. 2015/10540, K.2015/20832.
11th Civil Chamber of the Supreme Court, 2020/5943 E., 2021/4502 K.
12nd Civil Chamber of the Supreme Court, 2015/1965 E., 2015/10281 K.
[1] 11th Civil Chamber of the Supreme Court, 2020/5943 E., 2021/4502 K.
[2] Talih Uyar/Alper Uyar/Cüneyt Uyar, (2015), Olumsuz(Menfi) Tespit ve Geri Alma(İstirdat) Davaları, Bilge Yayıncılık, Ankara, s.84-91.
[3]12nd Civil Chamber of the Supreme Court, 2015/1965 E., 2015/10281 K.
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