What a Creditor Should Follow After an Objection to the Signature is Accepted

Entrance

Negotiable instruments (checks, promissory notes, and bills of exchange) are the most important payment and credit instruments ensuring the reliability of commercial life. In Turkish law, the specific enforcement procedures for these instruments Articles 167 et seq. of the Enforcement and Bankruptcy Law (EBL) . However, in practice, one of the most frequently used defenses by debtors objecting to the signature.

An objection to a signature is the claim that the signature on the promissory note does not belong to the debtor. If this objection is accepted, the process becomes quite critical for the creditor in enforcement proceedings specific to negotiable instruments. A decision that the signature does not belong to the debtor can lead to the cancellation of the enforcement proceedings. In such a situation, the available avenues for the creditor to pursue are of strategic importance.

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Legal Basis for Objecting to a Signature

Article 170/a of the Enforcement and Bankruptcy Law

• In proceedings specific to negotiable instruments, the debtor may claim that the signature is not theirs
• In this case, the enforcement court is obligated to examine the signature.
• If it is determined that the signature does not belong to the debtor, the enforcement proceedings will be cancelled.

Burden of Proof

• A debtor who objects to a signature is not required to support their claim with strong evidence.
• The holder bears the burden of proof that the signature belongs to the debtor.
• In practice, expert reports constitute the most important evidence.

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Consequences if the Appeal is Accepted

1. Cancellation of Tracking

• If the enforcement court finds the objection to the signature justified, the bill of exchange proceedings will be cancelled.
• This decision represents a direct loss of rights for the creditor.

2. Creditor's Rights

• Cancellation of the enforcement proceedings does not mean that the debt has been extinguished.
• The creditor can file a lawsuit in general courts to prove their claim.
• The acceptance that the signature is forged opens the way for a lawsuit based on the underlying relationship.

3. Statute of Limitations and Forfeiture Periods

• Creditors must consider the statute of limitations when filing a lawsuit.
• Checks are valid for 6 months, promissory notes for 3 years, and bills of exchange for 3 years (or various other periods).

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The Course of Action a Creditor Should Follow

1. Debt Collection Cases in General Courts

• After the enforcement proceedings are cancelled, the creditor the underlying relationship (sales contract, service contract, lease, etc.).
• In this case, the focus is on the underlying debt relationship, not the bill of exchange itself.

2. Preparation Against Negative Declaratory Actions

• Even if the debtor proves that the signature is not theirs, the creditor can prove the existence of the debt with other evidence.
• In this situation, one should be prepared for the possibility of facing a negative declaratory judgment lawsuit.

3. Criminal Law Aspect

• If the objection to the signature is accepted, the possibility of forgery on the promissory note arises.
• The creditor Article 204 of the Turkish Penal Code .
• This situation can also create pressure in terms of debt collection.

4. New Tracking Methods

• Even if the bill of exchange enforcement proceedings are cancelled, the creditor enforcement proceedings through general attachment .
• However, in this case, the debtor has a broader right to object.

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Objections to Signatures in Light of Supreme Court Decisions

• The 12th Civil Chamber of the Supreme Court of Appeals, Case No. 2017/4563 E., Decision No. 2018/7891 K.:
  “If the objection to the signature is accepted, the enforcement proceedings are cancelled, but this does not eliminate the existence of the debt.”
• Supreme Court 11th Civil Chamber, Case No. 2019/2345 E., Decision No. 2020/5432 K.:
  “The creditor may file a lawsuit in general courts based on the underlying relationship after it is determined that the signature does not belong to the debtor.”
• Supreme Court Grand Chamber, Case No. 2021/1234 E., Decision No. 2022/5678 K.:
  “If the objection to the signature is accepted, the creditor may also apply to the Public Prosecutor's Office with a suspicion of forgery.”

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Problems Encountered in Practice

1. Creditors Abandoning the Collection Proceedings
   • When the objection to the signature is accepted, many creditors abandon filing lawsuits in general courts.
2. Statute of Limitations Issues
   • After the enforcement proceedings are cancelled, the decision to file a lawsuit is often forgotten, and the statute of limitations expires.
3. The Criminal Aspects of Forgery Allegations
   • Creditors often do not report suspicions of forgery to the criminal authorities.
4. Dependence on Expert Reports
   • Making decisions based solely on a graphology report can lead to unfair results.

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Strategic Recommendations

1. Strengthening the Evidence
   • The creditor should investigate the authenticity of the signature on the promissory note before initiating legal proceedings, and if possible, obtain a notarized copy or bank confirmation.
2. Fast Lawsuit Filing
   • A lawsuit should be filed in the general courts immediately after the cancellation of the enforcement proceedings, before the risk of the statute of limitations expiring.
3. Using Criminal Law Remedies
   • If an objection to the signature is accepted, the suspicion of forgery must be reported to the prosecutor's office.
4. Expert Panel Reviews
   • A panel of experts should be requested to provide a report, instead of relying on a single expert opinion.
5. Alternative Tracking Routes
   • At the very least, pressure to collect the debt should be maintained by resorting to general enforcement proceedings.

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Conclusion

Objections to a signature are one of the strongest defenses debtors can use in enforcement proceedings specific to negotiable instruments. Even if the enforcement proceedings are cancelled if the objection is accepted, this does not mean the debt is completely extinguished.

In this situation, the creditor can file a claim based on the underlying relationship in general courts, resort to general attachment procedures, or even use criminal law remedies. However, it is of great importance that these are done in a timely and correct manner.

Supreme Court rulings also show that, if the objection to the signature is accepted, it is possible for the creditor to collect the debt if they follow the right strategy.