Question posted in the National Credit Act Law category relating to Gauteng
Hallo. I owe FNB R500 000 in credit card, revolving loan and personal loan debt. My business failed and I have nothing left. I live with my fiance in his house, do not own a car or furniture. I have absolutely nothing they can take nor a job. Is it better to file a case against FNB for reckless lending, better to sequestrate, or will the best be to do absolutely nothing seeing that I have no assets to protect. I do however have a small retirement/life policy. Thats all. Can they take the policy from me? I am 50 years old. Please advise which route would be the best for my circumstances.
Message from the Attorney
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Well, I don't really know what you should do, but I can tell you what FNB will do. They will issue a summons against you for the R500,000 and will get a judgment. The judgment will then last 30 years, so even if you earn money in the next 30 years, FNB will be able to attach it. So the judgment will last for a long time! After they get the judgment, they might not sequestrate you. The only time they will, is if you have some assets which can be realised to try pay the debt. If you don't have assets, they probably won't want to spend the money on a sequestration application.
If you wanted to sequestrate yourself, you could do that. The advantage is that it would wipe out the FNB debt / judgment completely, and after a couple of years, you could carry on with your life. You would need to be rehabilitated after a couple of years, but you'd deal with that later. For now, sequestration seems like your best bet.
I don't know enough about the facts behind your reckless lending allegations to comment on that, because so much depends on the circumstances. e.g. did they do a proper financial assessment before they loaned you the money. Were you 100% truthful in the assessment. etc. What you could do is to use the reckless lending argument as part of your defence when they sue you. i.e. don't go on the attack, rather play defence, in the hopes of getting their claim against you kicked out and set aside. That might be the best because then you are not actually driving the litigation, you're defending it.
FNB can't touch any retirement policy, so don't worry about that. They can't take it from you.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
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Message from the Customer
Thank you SO much for your clearly to understand answer. I have a few questions more and that is the order.
Let me give some background on why I think I might have a reckless lending case. I was offered extra money time and again from FNB side online when I log in. When I agree I want the money, I got a small questionaire and after that the money. They did not ask for proof of any assets or salary. They lend all those money to me from time to time purely because my bank record has been clean for 30 years. But I did not have to hand in any documents or proof of anything.
My question is this: Would it be best to go to court the day they have the case against me, give my side of the story and only after the outcome get sequestrated? Or do you think the best route would be to get sequestrated and get it over and done with? Thanks again for your help, as you can imagine I am not sleeping much these days.
Message from the Attorney
Based on what you've said, you might very well have a case to be made against them for reckless lending.
You should file a plea (defence) to their summons in which you admit/deny each allegation they make in their summons. Then, you should also file a counterclaim (it should look similar to their summons) in which you claim that they lent you money recklessly and that you want the loan declared invalid in terms of the NCA.
This should all be done way before any sequestration application.