Another dagger at the heart of banks attempting to recover debts without original documents

Posted 22 November 2016 Written by Ciaran Ryan
Category Banking

Here's another tale of heartache for the banks, this time involving FNB, which attempted to claim R74,144 from a customer who had acquired a vehicle by way of instalment sale. The problem is FNB arrived in court without the original documents. The judge made short work of FNB's case and booted it out of court. In this case, the defendent Adrian Hart represented himself with nothing more than a rudimentary knowledge of the law, and a firm conviction that the bank was trying to pull a fast one on the court.

You almost feel sorry for the banks. The longer they rely on the Docufile fire or other stories to explain their inability to locate original bank documents, the harder it gets for them to even get inside the court room. 

I previously reported on Absa’s failed attempt to grab Greg Smith’s house in Cape Town. Here’s another case that has just come to light, this time involving FNB and Kwazulu-Natal resident, Adrian Hart.

In September, Judge Robertson of the South Gauteng High Court dismissed FNB’s attempts to claim R74,144 from Adrian Hart of Johannesburg, who in 2006 had acquired a vehicle by way of an instalment sale agreement with the bank.

Hart represented himself in court. No expensive lawyers needed for this one. And his case was dead simple: “I do not believe the Ebrahim (the deponent from the bank) is in a position to swear positively to the allegations made in his affidavit and that he has therefore merely ‘rubber stamped’ the affidavit because:
  • Having regard to the fact that the matter dates back to 2006 and the time periods involved in this matter, which are in excess of nine years. Ebrahim should at least have stated the period during which he has been so employed by the Plaintiff (FNB)
  • Described the documents which he has allegedly inspected.
“The fact that the Plaintiff makes the averment in his Particulars of Claim that it cannot locate the original agreement/application or even a copy thereof casts further aspersions over Ebrahim’s affidavit and his knowledge of and ability to swear positively to the facts to which he deposes, as well as the accuracy of the electronic records to which he has access.”

Rule 32(2) of the High Court rules requires banks to attach copies of documents of which their claims are based. They cannot then stand before the court and say they cannot locate the documents, hard copy or electronic, and expect the court to listen. They know the rules.

Swearing positively

If ever you’ve been summonsed by a bank, you will be confronted with an affidavit from some manager within the organisation, usually the legal department, who will attest to having personal knowledge of the client and the case.

They then offer a cut and paste from the High Court rule book to the effect they can “swear positively” to the facts verifying the cause of action. They usually add that the defendant does not have a bona fide defence, and they are putting up a defence merely to delay matters.

Well, it seems several judges have heard enough of this nonsense and are throwing the banks’ cases out of court.

I'm a banker - trust me 

In Ebrahim’s affidavit he states that he is a legal manager at FNB, and that he has access to the books and accounts relating to Hart’s facilities at FNB. “These books and accounts are stored in electronic format and I am able to access these documents from my computer. I have in fact accessed these documents and perused them.” And on this basis he professes himself knowledgeable on the facts and authorised to make the affidavit.

Judge Robertson was not convinced that Ebrahim had personal acquired knowledge of the facts of the case in the ordinary course of his duties. His assertion that he got his knowledge from the books and accounts of the client was insufficient to get him past summary judgment.

The judge says the first problem with the bank’s case was that Ebrahim did not say what documents he perused to acquire his “personal knowledge”. The second problem was what exactly were the electronic records he was looking at? “The absence of the original agreement must be borne in mind.”

The bank’s particulars of claim gives no information about the interest rate payable, the finance charges, the instalment payable, the number and frequency of instalments or any other costs.

Hart also claimed the debt was prescribed (old, and therefore the bank has no legal right to claim it).

DIY Defence - always defend when served with a summons (and lose your fear of the courts and lawyers)

The bottom line: it is getting easier to defend yourself in court using smart defences such as those outlined in this case, and in Greg Smith’s case against Absa. You don’t need expensive lawyers to get there.

Debt specialist Tony Webbstock of Debt Admin has drawn up a template to help anyone who receives a summons to give notice of their intention to defend themselves.

Comments debt slayer Armand Rinier: "So many of these summonses that we see are bogus. As in the case of Adrian Hart, and Greg Smith, banks try to slip these bogus claims under the noses of judges, but it is getting harder for them to get away with it. The banks rely on our fear of courts and lawyers. Fear is their main weapon, so we have to take this weapon away from them.

"Every summons should be defended. And South Africans need to lose their fear of courts and lawyers and judges. Tony has developed a template which can be used by any person served with a summons. You don't need to pay expensive lawyers to do this. This is the same template we used for Adrian Hart, and has successfully defended many other people with this same methodology. 

Click here to access the DIY Defence template. 


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