Port Elizabeth - The 699-ers are understandably upset by the news that the application to the Port Elizabeth High Court to have all 24 000 or so of them certified as a “class” has been dismissed with costs.
It was intended to be a step towards a class action suit to have their credit agreements with their banks set aside on the basis of reckless lending.
Many are venting on the Facebook group “I have been done in by ‘Drive a New Car From R699 per month’”, some going so far as to question the competency and integrity of the judge in the matter, without having read the judgment.
The application was found to be flawed in several respects, starting with the fact that the PE court doesn’t have jurisdiction because none of the respondents are based in the Eastern Cape.
A few 699-ers do indeed have evidence that the information they gave Satinsky about their personal finances was manipulated in order for them to pass the banks’ affordability tests – as revealed in Consumer Watch in recent weeks.
But, unfortunately, in the case of Johannes Bartosch, the PE man chosen by PE attorney Duncan Heuer of law firm Pieterse, Cary, Finlaison Inc to represent all 24 000 affected Satinsky clients in the class action application, there was no such evidence presented in the court papers, nor any evidence that his bank didn’t properly assess his affordability.
Judge Dayalan Chetty said Heuer had “dismally failed to disclose any cause of action whatsoever” and that his entire case had been “predicated upon extravagant assertion”.
But that’s not to say that the banks did not approve many of those 699 deals in what the National Credit Act (NCA) would deem a reckless manner.
It stands to reason that if the majority of the 699-ers could in fact afford the full monthly vehicle finance instalment – about R2300 on average – without the monthly advertising fee Satinsky had assured them of, there’d be no financial crisis.
THE BIG CHALLENGE
But reckless lending has to be proved, and that’s the challenge.
With the dismissal of the class action – which was being brought by Heuer at no cost to them – those who feel they have a strong case to argue for reckless lending will have to seek justice by tackling their credit providers individually.
A few who can afford it may choose to do so with their own legal representation; others have approached the National Credit Regulator – which is mandated to enforce the NCA – for help, since this is a free service to consumers.
Heuer’s firm, Pieterse, Cary, Finlaison Inc, said they respected the judgment but had decided to appeal the cost order made against the firm. (Nedbank, Absa and Standard Banks’ legal representation costs, including that of three senior counsel, would have been considerable.)
“Due to the number of consumers affected by the R699 car scheme it was our opinion, as well as counsel’s, that a class action would be the most appropriate form of court proceedings to deal with the matter,” the firm said.
“As the court held that the current matter does not lend itself to be pursued by way of class action, going forward consumers will now have to engage with their credit providers individually, whether they are legally represented or not.”
The three banks welcomed the judge’s decision, of course.
WHAT THE BANKS ARE DOING
Nedbank said MFC, which has 14 000 Satinsky clients, had a dedicated process in place to help the affected clients “and remains committed to working with all clients to explore viable solutions in line with the National Credit Act”.
“We believe that this is the correct application of the law to the facts of the case,” said Absa, which has 6500 Satinsky clients.
“Absa has and will continue to assist clients who are under financial stress.”
And Standard Bank, which, with 3600 Satinsky clients, is the least exposed, said it only granted loans if “all the credit and affordability criteria have been met”.
“We would be happy to look at assisting customers rescheduling their loans, as we would as part of the normal collection practice for accounts in arrears,” the bank said.
All three have denied allegations that they had not been providing 699-ers with their credit application forms on request.
Those forms reveal the applicants’ stated monthly income and expenses. Many 699-ers have claimed that the expenses total on their form is far less than their actual expenditure, as submitted to Satinsky, and argue that the reduced total was so implausible, given the cost of living, that the banks should have queried it, but failed to.
Many also feel that the banks failed to do due diligence on the 699 deal before agreeing to finance the cars, and are not doing enough now to help those who can’t afford the their instalment, such as lowering the interest rate.
AN ANGRY MAN SPEAKS
“Absa can take their car and shove it now.”
Johannes Bartosch is an angry man.
Disappointed too, of course, that the application to have many thousands of people who have borne the brunt of the collapse of the 699 deal declared a class – in order to take on the banks in a reckless lending class action – was dismissed last week by the Port Elizabeth High Court.
After all, it’s his name that appears as the applicant in the court papers.
A Port Elizabeth resident, Bartosch bought his Tata Indica from Satinsky last November.
It was financed by Absa on a no-deposit deal, over six years, with a monthly instalment of R2500.
A contract worker with a motor manufacturer, he travels 70km a day to and from work, which made the Satinsky deal – the higher the mileage the bigger the advertising fee – seem ideal.
But the monthly advertising fee he was paid, initially R1400, dropped to R570 in March, despite the fact that he continued to provide proof of his high mileage.
Since June, he’s had no subsidy whatsoever.
In July, like many others, he turned to his bank for help.
His monthly instalment has since dropped to R1672, but at considerable cost to Bartosch, because the lengthening of his finance period has massive interest implications.
He has a whopping 96 such payments still to make.
His original term was 72 months, and he’d been paying R2500 since November.
His outstanding balance has now shot up to R154 000, when it was R115 000.
But it is this line in his letter from Absa that has really made Bartosch see red: “Please note that this concession has an effect on your credit bureau profile and will be reported accordingly.”
He said: “So what’s the use of me carrying on paying for this car for another eight years when my credit record is messed up anyway?
“To top it all, my car has been problematic since day 1, and Absa knows it,” Bartosch adds.
“I doubt it will last that long. Within months the brakes had packed up, the exhaust has broken three times and now the gearbox is buggered, and there’s an overwhelming smell of fuel in the car.
“I’ve had it. I am not prepared to pay this amount, for such a long period, to drive a piece of crap – and still have a black mark on my credit record!”
what is reckless lending?
The National Credit Act states that a credit agreement is reckless if the bank either failed to assess a consumer’s financial position, or approved a credit application “despite the fact that the preponderance of information available to the credit provider indicated that the consumer did not generally understand the risks, costs or obligations of the agreement”, or despite the fact that entering into it would make the consumer over-indebted.
In other words, the NCA seeks to protect consumers from ill-advisedly getting in over their heads, by requiring the banks to check that an applicant could actually afford to service the debt, given all their other commitments.
If a credit agreement is deemed reckless, a court may set aside “all or part of the consumer’s rights and obligations under that agreement”. So the 699-ers would be let off the hook regarding their instalments and the banks would have to take back the cars.
National Credit Regulator
E-mail: [email protected]
Call: 011 554 2600 or tollshare: 0860 627 627
To discuss your 699 deal with your bank:
Call 0860 879 900 (tell the call centre agent you are a R699/ Satinsky client to ensure fast-track routing to the specialist support team)
Absa: Call 0860 789 111 (Option 5 – dedicated to 699 queries)
Standard Bank: E-mail: [email protected]
Article by: The Star