I recently gave some comments on a debt problem and I think this may also benefit some here.

1. The bank sought and auctioned out a property (without title) at less than the current market price.
2. The bank then sought a summary judgment against the debtor for the balance.
3. Costs for self-represented defendant.

As to whether one can do anything in (1), my comment is nothing. This is because the Bank has no duty to the borrower to get the BEST price, although the Bank could not neglect (in conscience) the interest of the Borrower’s completely.  The Bank is however must provide the maximum exposure to sell the property (say if the bank advertising is defective in any way then you may raise this). (See Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676) But it is also important to bear in mind that the Bank does not need to ensure the property is sold with a vacant possession and it is up to the new owner (assignee) to get rid of the debtor (or tenants of the debtor) in the property. Now if you wish to stop the auction then you can also ask for an injunction against the Bank or Property Developer who is also registering the transfer (most property without title has a clause which says that all transfer to be effected by the Developer for a fee). However, injunctions are rarely granted subject to whether there are triable issues (fraud), balance of convienence. In most cases, an undertaking or a deposit of the debt amount is required with the Court (to maintain status quo). Obviously the Judge can decide the amount to be deposited but equity loath to do justice at last minute, so any action that is needed must be preferably with notice (inter-parte).  Once you stop the auction, then you can bring in your grievances like lack of notice, or amount is questionable etc. However, once it is sold then your rights are limited.

If you have a property with TITLE then your rights are much better and are governed by Land Ordinance or NLC (see charge) and there are steps that the bank must take. In particular the Bank cannot take dual action against you (ie applying the remedy in the charge AND suing to recover the same over in debt).

In (2), one must understand the principle of a summary judgment – which means the plaintiff (bank) is asking your case to be granted judgment in his favor as there is NO dispute of facts or law or there is no triable issues (as in the jargon). This means there is no full trial and the judge will make a decision based on what is stated in the Bank’s affidavit. This method is fast and cheap. Remember if you do not show up at Court then it is most likely you will get judgment in default (JID) (another type of judgment). The difference between the two is that in JID, it is by default (absent). What can you do in face of a summary judgment ? You need to reply and to state whether there are any dispute of facts or law. In debt cases, it is common for the bank to issue you with a certificate of indebtness. This is a very important document as it is conclusive evidence for the purpose that you owe the amount and can only be rebutted by evidence to the contrary (say something from the bank that says otherwise). Now if the Bank did not include this certificate for the remaining balance (as in this instance) then you may question this point. You should also pay attention to the format of a summary application which is unique and found in the Court Rule Book. An important element is that in the Bank’s affidavit, sources must be named (else this can be struck out). But remember even if you defeat this summary application, all it means is that the Judge will order for trial ( in short merely delaying the process). This may help you to renegotiate with the bank but it does not reduce the costs to you. Once a bank got a judgment against you then the bank will have to enforce this by either garnishee or bankruptcy. There are consequences to each of the methods here which you can find on the net. Suffice to say they are not pretty or helpful to your future.

In (3) and this is most frustrating because as a self-represented defendant you are not entitle to costs and in most bank cases (assuming you actually owed the bank money) will win, then you will need to face the costs of the bank’s legal costs. This amount may range from 5-50K depending on the complexity – the number of mentions – the interlocutories -the trial – etc. In my experience, unless the bank made a mistake or its lawyers made a mistake, then your chances of winning is not great or at all. The law on debt is old and clear which is to say a debtor must repay his/her debt and contracts are designed for this purpose. Again, my personal advice is that if you are in trouble with the bank please negotiate with them. There are facilities to help you without losing your home and even the banks will be reluctant to foreclose them. You can suggest a longer term, more guarantees, get a second job, anything to avoid the bank from initiating proceedings against you (which costs will be in your account). BTW, you are allowed to be present at the auction of your own home. The bank’s lawyers will be present as well and up to this time (before auction starts) it is still within your power to redeem your home by paying the full due amount.

Hope this may help some who are facing this problem and remember this is not legal advice and I do not have any relationship with you.

CK