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Post by Trog on Mar 1, 2024 10:12:40 GMT
This is a very short summary of a very long story - I'll elaborate later if anyone is interested.
I have a dispute with FNB. They claim that we have a shortfall on a joint bond my wife and I had with them for a house we bought.
They tried to coerce me into agreeing to that shortfall before they would transfer the property to the new buyer.
I was never going to agree with that.
Now listen to this: The buyer collected the FNB documents from the transfer attorneys (in a flagrant disregard of POPI regulations, surely) and took them to my wife to sign at her place of work. She did in fact sign those documents. In the mean time, I emailed the transfer attorneys and informed them that I will not, under any circumstances, sign those documents and that they should inform FNB of that fact.
Anyway, the transfer attorneys handed the signed documents to FNB, the house was transferred, and FNB has issued a debit order on my wife's bank account.
So I ordered FNB to immediately cancel that debit order, since I did not agree to any of their requirements, failing which I will initiate criminal proceedings against FNB.
So my question is: Where do I lay this charge, and who do I charge?
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Post by cjm on Mar 1, 2024 12:07:15 GMT
A a number of questions (although I offer a tentative opinion below):
1. Did your wife have the necessary authority to sign (this depends inter alia on your marriage status - in or out of community)?
2. Presumably you received the proceed of the sale (or it was applied for your benefit)?
3. What is your wife's position (attitude) in all this?
If you want to lay criminal charges, the police of the area concerned should be approached. I imagine this would be where the crime was committed (presumably this would be where your wife signed the documents - but there are multiple possibilities). In all likelihood the police will claim that it is a civil matter - beyond their interest and jurisdiction. They might also direct you to their commercial division - where you are likely to encounter a great level of sophistication and expertise than at the local police office.
I assume you have fraud in mind as an possible charge.
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Post by cjm on Mar 1, 2024 12:09:28 GMT
For good measure I would lay the charge against both the bank and the buyer. The prosecutor will decide eventually what to do.
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Post by Trog on Mar 1, 2024 13:05:48 GMT
A a number of questions (although I offer a tentative opinion below): 1. Did your wife have the necessary authority to sign (this depends inter alia on your marriage status - in or out of community)? 2. Presumably you received the proceed of the sale (or it was applied for your benefit)? 3. What is your wife's position (attitude) in all this? If you want to lay criminal charges, the police of the area concerned should be approached. I imagine this would be where the crime was committed (presumably this would be where your wife signed the documents - but there are multiple possibilities). In all likelihood the police will claim that it is a civil matter - beyond their interest and jurisdiction. They might also direct you to their commercial division - where you are likely to encounter a great level of sophistication and expertise than at the local police office. I assume you have fraud in mind as an possible charge. 1. We are married within community of property. The bond was in both our names. So I would assume that we would both need to sign all documents. Particularly since I immediately informed the transfer attorneys that I will NOT sign the documents and that they must inform FNB of that. In fact, I totally assumed that, since I had not signed those documents, they would never have come into FNB's possession. 2. I suppose the proceeds of the sale were applied to what the bank deemed the outstanding amount. I did not even look at these documents because they were, as far as I'm concerned, invalid. 3. My wife doesn't want to know anything about this - she just wants it to go away. That's okay by me, as long as nobody pays FNB anything. Should FNB NOT cancel the debit order and money is debited from my wife's account, I believe that it must be a criminal act, since I have informed them of the fact that they are in error and they therefore knowingly deducted that money illegally. |
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Post by cjm on Mar 1, 2024 13:38:16 GMT
A a number of questions (although I offer a tentative opinion below): 1. Did your wife have the necessary authority to sign (this depends inter alia on your marriage status - in or out of community)? 2. Presumably you received the proceed of the sale (or it was applied for your benefit)? 3. What is your wife's position (attitude) in all this? If you want to lay criminal charges, the police of the area concerned should be approached. I imagine this would be where the crime was committed (presumably this would be where your wife signed the documents - but there are multiple possibilities). In all likelihood the police will claim that it is a civil matter - beyond their interest and jurisdiction. They might also direct you to their commercial division - where you are likely to encounter a great level of sophistication and expertise than at the local police office. I assume you have fraud in mind as an possible charge. 1. We are married within community of property. The bond was in both our names. So I would assume that we would both need to sign all documents. Particularly since I immediately informed the transfer attorneys that I will NOT sign the documents and that they must inform FNB of that. In fact, I totally assumed that, since I had not signed those documents, they would never have come into FNB's possession. 2. I suppose the proceeds of the sale were applied to what the bank deemed the outstanding amount. I did not even look at these documents because they were, as far as I'm concerned, invalid. 3. My wife doesn't want to know anything about this - she just wants it to go away. That's okay by me, as long as nobody pays FNB anything. Should FNB NOT cancel the debit order and money is debited from my wife's account, I believe that it must be a criminal act, since I have informed them of the fact that they are in error and they therefore knowingly deducted that money illegally. ) At core here it seems to me is the authority your wife had (or did not have) to sign off on the matter. Through the years the position of the wife in such marriage has been strengthened considerably. The question is whether she had the power to override your instructions and bind you. I'll look into it. No reason why you cannot lay a charge in the meantime. I would widen your proposed charge to include the fraudulent transfer of the property - never mind the debit order. I am surprised that they managed to transfer the property. It means, to my mind, that the documents on the face of it must appear regular and supportive of the transfer. |
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Post by cjm on Mar 1, 2024 13:42:34 GMT
There is, of course, the Bank Ombudsman as well. Questions of criminality are not a limitation there.
FNB, in fact, should be able to provide you with the particulars of lodging a complaint there.
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Post by Trog on Mar 1, 2024 14:08:05 GMT
At core here it seems to me is the authority your wife had (or did not have) to sign off on the matter. Through the years the position of the wife in such marriage has been strengthened considerably. The question is whether she had the power to override your instructions and bind you. I'll look into it. Thanks. It is not as if my wife wanted to override my instructions or anything, she simply signed the documents in good faith. (She did not fully understand the situation). Do you have an opinion on the transfer attorneys' role in the matter? Firstly in handing FNB's documentation to us over to the buyer to expedite our signatures, and then to return the documents to FNB after I explicitly and emphatically told them (the transfer attorneys) that I will not sign them? |
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Post by cjm on Mar 1, 2024 19:27:30 GMT
At core here it seems to me is the authority your wife had (or did not have) to sign off on the matter. Through the years the position of the wife in such marriage has been strengthened considerably. The question is whether she had the power to override your instructions and bind you. I'll look into it. Thanks. It is not as if my wife wanted to override my instructions or anything, she simply signed the documents in good faith. (She did not fully understand the situation). Do you have an opinion on the transfer attorneys' role in the matter? Firstly in handing FNB's documentation to us over to the buyer to expedite our signatures, and then to return the documents to FNB after I explicitly and emphatically told them (the transfer attorneys) that I will not sign them? Transfer attorneys have a lot of responsibility to ensure the legality of the transfer. Disregarding an express instruction seems rather shocking . Transfer attorneys generally act on behalf of the seller. They should have paid attention to your objections even in a legal sense. You are their client. You could also lodge a complaint with the local branch of the Law Society. Again, the easiest way to obtain the particulars is to ask the conveyancer concerned . I suspect that your wife signed a document authorising the transfer on behalf of both of you. Only way I can see this happening. I also suspect that the conveyancer concerned is legally obliged to ensure that you did consent to your wife acting on behalf of both of you. |
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Post by cjm on Mar 2, 2024 7:44:10 GMT
The main issue would appear to be dealt with in section 15 of the MATRIMONIAL PROPERTY ACT, Act 88 of 1984 (sections 14, 15 and 16 are appended below). Not that it probably matters much in this case, but I assume your marriage was concluded after 1984 - ie after the commencement of the Act. As is always the case with open access legislation on the Internet, one is never sure how up to date it is. However there is a note on the website concerned saying that it was last checked on 18 October 2022. I have asssumed that the text quoted below (from the mentioned website) is the most recent version. So then, the situation appears to be that a spouse married in community of property (which I take to be the case here), generally speaking, can consent to certain transactions without the consent of the other spouse (section 15(1) of the Act). However, there are exceptions and the main one relevant here seems to be section 15(2)(a) and (b) which reads: "(2) Such a spouse shall not without the written consent of the other spouse—
(a) alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate;
(b) enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate;..."
Consenting to transfer would seem to involve such right calling for written consent. It may be argued that consenting to the sale of the property (if such written consent was given) implies consent to transfer. However, in this regard subsection 4 seems relevant: (5) The consent required for the performance of the acts contemplated in paragraphs (a), (b), (f), (g) and (h) of subsection (2) shall be given separately in respect of each act and shall be attested by two competent witnesses [my emphasis in both cases].
I would be tempted to argue that even if a consent as contemplated was given in the proper form, it was recalled orally by the instructions to the attorney. At least, in my view, it would amount to a breach of ethics to ignore such recall. The evasion of this recall by sending the purchaser with documents to the wife is outrageous - the attorney obviously tried to wash his hands of the matter by sending a third party to get the documents signed. If consent as required was not given, the transfer seems void and the attorney should take steps to have it eliminated from the records. Once the lack of consent is determined with some accuracy, the purchaser should be notified to obviate the possibility of a resale. One may note that the purchaser could attempt to compel transfer. |
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Post by Trog on Mar 2, 2024 9:54:38 GMT
Thank you so much for all your trouble.
I must mention that I do not object to the transfer of the property.
What I object to is that FNB claims that they consented to the transfer of the property based on our signing the documents below, and that FNB now has a debit order on my wife's bank account.:
(This is the email we got from the transfer attorneys:)
We were in the Eastern Cape at the time, but that is bye the bye, since I was not going to sign the documents anyway. If FNB was going to make the transfer conditional on my signing them, then that was their problem - then the transfer was just not going to take place.
So we came back on Sunday, the buyer asked the transfer attorneys to forward these documents to him, he printed them out, went to my wife's place of work, had her complete and sign the documents, and then asked if he could bring them to my place of work for me to sign. It which stage I told my wife that I will under no circumstances sign those documents. Thereupon the buyer drove all the way from the East Rand to hand the documents to the transfer attorneys in Pretoria.
Thereupon I sent the following email in reply to the email above to the transfer attorneys:
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Post by cjm on Mar 2, 2024 10:35:02 GMT
Thank you so much for all your trouble. I must mention that I do not object to the transfer of the property. What I object to is that FNB claims that they consented to the transfer of the property based on our signing the documents below, and that FNB now has a debit order on my wife's bank account.: (This is the email we got from the transfer attorneys:) We were in the Eastern Cape at the time, but that is bye the bye, since I was not going to sign the documents anyway. If FNB was going to make the transfer conditional on my signing them, then that was their problem. So we came back on Sunday, the buyer asked the transfer attorneys to forward these documents to him, he printed them out, went to my wife's place of work, had her complete and sign the documents, and then asked if he could bring them to my place of work for me to sign. It which stage I told my wife that I will under no circumstances sign those documents. Thereupon the buyer drove all the way from the East Rand to hand the documents to the transfer attorneys in Pretoria. Thereupon I sent the following email in reply to the email above transfer attorneys: I cannot see how they got round your written consent. Your wife's signature would not have been enough for the transfer. She could have consented to the debit order but unless that was accompanied by the transfer, they would not have been entitled to a debit order. The transfer documents (filed at the deeds office) must record that the house owned by both of you was sold to x and that you both authorise the transfer attorney to appear before the Registrar of Deeds and effect transfer. |
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Post by Trog on Mar 2, 2024 10:54:33 GMT
I cannot see how they got round your written consent. Your wife's signature would not have been enough for the transfer. She could have consented to the debit order but unless that was accompanied by the transfer, they would not have been entitled to a debit order. The transfer documents (filed at the deeds office) must record that the house owned by both of you was sold to x and that you both authorise the transfer attorney to appear before the Registrar of Deeds and effect transfer. Ok, we DID agree to the transfer, and we did both sign the actual transfer documents. These did not include the documents from FNB, which was sent to us later and which I then refused to sign. |
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Post by cjm on Mar 2, 2024 16:50:55 GMT
In the aforegoing I erroneously assumed that the lack of consent related to the transfer. This is obviously not the case.
The relevance of the Bank's quest for the signing of the documents resides presumably in the mortgage bond. Unless those documents were signed it in all probability would not have consented to the cancellation of the bond.
It in effect is now granting you an extension of time to pay off the shortfall.
Considering that both you and your wife have an interest in her income, the question remains whether you should not have consented to the debit order as well.
Perhaps you are still "saved" by the following subsection of section 15:
"(2) Such a spouse shall not without the written consent of the other spouse—
...
(f) enter, as a consumer, into a credit agreement to which the provisions of the National Credit Act, 2005 apply, as ‘consumer’ and ‘credit agreement’ are respectively defined in that Act, but this paragraph does not require the written consent of a spouse before incurring each successive charge under a credit facility, as defined in that Act;" [emphasis added].
Clearly credit (repayable via debit order) is extended to you for the shortfall. The Credit Act is a jungle and this will have to be examined more closely to determine its correctness. For the time being though such argument could be a course of attack.
Ultimately, the only lasting solution is getting rid of the Bank's quest for the shortfall. If it has not been done yet, the issue should be take up with the Bank and if not resolved, with the Bank Ombudsman.
It may be noted that under the Credit Act a body called the National Credit Regulator has been established whence a decision about the status of the debit order could perhaps be elicited. It is perhaps even possible that the requirements of that Act had not been met in the cavalier fashion the debit order was imposed. Again this will only temporarily stay the Bank's crusade.
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