Profile: Kim Armfield & Associates
Debtfree took some time to speak to well respected Attorney, Kim Armfield who has been dealing with debt review matters for many years. We asked her a few questions about her practice, her cases and about debt review matters at court.
Why did you get into law?
Life happens. It was never my intention to study law, but we are not always in control of what happens in life. My first job was as a legal typist at a reputable law firm in Cape Town from there I moved up to legal secretary, head of collections, and started studying at Unisa part time. My previous employers, Visagie Vos & Partners, offered to fund my studies and gave me the opportunity to do my articles with them. Of course, I will always be grateful for this and I remind myself from time to time that it was this grace and generosity that built our practice.
How long have you been practising?
I qualified and started practising as an attorney in 1998 and started practising for my own account, after gaining some valuable experience, in 2003.
What kind of services do you offer/law do you practise?
In my almost 20 years of practise, I have done a myriad of matters, including collections, general litigation, criminal matters, family law, deceased estates, commercial law (contracts) and more recently family mediation. At present, I specialise in debt review matters and family law, but our practice does attend to various other matters which I oversee (and please note that I generally refer to “our practice” as opposed to “my practice” as it takes a trusting team to make a successful practice). Attorneys and even magistrates had, at the commencement of debt review, viewed it as a somewhat inferior area of legal practice (in fact, I was once openly asked by a magistrate why have I studied so many years “just to do debt review”. Thankfully I am not too concerned about people’s perceptions and I do not believe debt review to be inferior in any way. I believe this perception has since changed, as lawyers have come to realise how dynamic debt review can be. And at the end of the day, it is all about people, as opposed to lofty academic opinions.
Do you think consumers are benefiting from Debt Review?
On the whole, absolutely yes. You do still find some “rogue” Debt Counsellors (well, you find that in any industry), but Debt Counsellors are now mostly concentrating on getting the best deal for the consumer. There is a real need for debt review and there will always continue to be a need for it. I also believe that stats show that debt review does relieve over-indebtedness and many consumers, since the inception of debt review in 2007, have become debt free thanks to this process.
‘many consumers, since the inception of debt review in 2007, have become debt free thanks to this process’
What kind of assistance do Debt Counsellors need from attorneys such as yourself?
Guidance. Advice. Support. And sometimes someone to vent to about the industry or their consumer who is still complaining, even after being offered a lifeline. Sadly, there seem to be some Debt Counsellors who view attorneys as the enemy, and I am really not sure why. We are here to cover your back and help you get that required court order, and much more in fact.
What kind of assistance do consumers need from yourselves in the debt review process?
Our clients are the Debt Counsellors and not, in fact, the consumers. That being said, we still have contact with the consumers to obtain documentation or their signatures on Confirmatory Affidavits. And with the permission of our Debt Counsellors, we sometimes contact them for further information for a Supplementary Affidavit. And then, of course, there is that errant credit provider who issues a Summons despite you being under debt review. This sometimes still happens and we assist the consumers directly here, with the permission of our Debt Counsellors.
Are some courts easier than others?
Do fish swim? I am going to take it that your question is as rhetorical as mine. There are definitely some courts that are regarded as ‘easier’ than others. Whilst, in theory, a Magistrates is a creature of statute (he has to stay inside the four corners of legislation and may not use his own discretion unless this is specifically authorised in the relevant legislation), in reality, Magistrates do, in fact, sometimes go beyond the scope of their authority. A Magistrate may not have had his ‘Kellogg’s’ that morning and as a result, wants to find fault somewhere with an application. I would personally like to see more courts taken on appeal so that the industry can become more uniform.
What kind of things can delay a court application?
Most of the delays at courts are as a result of Confirmatory Affidavits not having been signed or lodged at court. There are some other causes of delay, for instance, a magistrate may query a budget and want us to file a Supplementary Affidavit, but this is not the norm. mostly court matters move quite swiftly if the application is done right.
Have you ever handled a reckless credit matters?
I have done but Debt Counsellors, mostly, do not wish to take on such matters (for good reason). Success is not always guaranteed. For example, in a matter, I argued on quite extensively, regarding an amount advanced to a consumer (who was no ordinary consumer and owned a farm worth at least R8 million) despite the fact that the bank knew he was not able to afford the repayments at the time. The court, unfortunately, found that the consumer had voluntarily consented to the advance and could not plead ignorance, as he was clearly an astute and knowledgeable consumer. We had expected to win based on the requirements of the NCA and were disappointed. The fact is, most courts are loathe to grant an reckless credit order against a credit provider and I believe this is because they do not want to allow consumers to evade responsibility. However, one needs to assess each matter on its merits.
Any interesting cases recently?
We were recently part of an appeal matter in the Western Cape High Court regarding the question of whether or not legislature intended for interest rates to be reduced by consent between the CP and DC (which we argued in favour of). This matter was argued prior to the recent judgment of Sansom vs Mars & Others, and our judgment was handed down shortly after that case. The very positive ruling indicates that credit providers and consumers can, by consent, agree to lower interest rates and these can be included in a debt review court order. It is rumoured that one of the banks may be taking an aspect of the Mars judgment on appeal…
‘The very positive ruling indicates that credit providers and consumers can, by consent, agree to lower interest rates and these can be included in a debt review court order’
Are there any areas of the NCA that you feel will be looked at if/when there is a NCA amendment?
Absolutely. I would strongly the suggest the amendment of Section 86(11) to include a provision allowing a debt review court to entertain a Sect. 86(11) application. At present, the High Court has interpreted this provision to mean that it is only the enforcing court that can hear a Sect. 86(11) application (for the reinstatement of an account under debt review). More often than not, the Credit Provider will thus ensure that they issue summons out of the High Court, which is not as readily accessible (and so very intimidating) to the lay consumer. It would be far more beneficial (and practical) to argue the possibility of reinstating an account before the magistrate who will also attend to the debt review application.
What advice do you have for Debt Counsellors?
Do not take chances. Do not get into any deals involving under the table deals. Do not try and take short cuts. There is absolutely nothing legally wrong with a ‘call centre’ set-up, but take care of it as you would a growing baby. If you get your act together and your motives are right, there is no reason why you cannot and should not have a thriving business. Take care of your consumers, and keep your attorney close!
‘Take care of your consumers, and keep your attorney close!’
What advice do you have for consumers?
Take responsibility for your actions but never feel ashamed or embarrassed about making mistakes in life. We all do. What is important is to do something about it. Also remember that it is your debt and not that of your Debt Counsellor. Your Debt Counsellor is there to assist you, but your DC is not there to wave a magic wand and make it all disappear. Follow up on the process, keep track of your payments. Get the vision, stick to the process and you will get out of debt.
‘remember that it is your debt and not that of your Debt Counsellor’