Hig­gler loses house to freight for­warder over $20m debt

Jamaica Gleaner - - BUSINESS - McPherse Thomp­son As­sis­tant Ed­i­tor – Busi­ness mcpherse.thomp­son@glean­erjm.com

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ASUPREME Court judge has given a freight for­warder the green light to ex­er­cise his power of sale over a house owned by an in­for­mal com­mer­cial im­porter or ICI, a class of traders pop­u­larly re­ferred to as hig­glers, which was used as col­lat­eral to se­cure a loan. The debt is al­leged to be about $20.5 mil­lion. The ICI, Dar­nel Fritz, the owner of Dar­nel Fritz En­ter­prise, had filed a claim against freight for­warder John Collins aris­ing out of a mort­gage for US$40,000 and an­other for US$88,000 held by him and recorded on the cer­tifi­cate of ti­tle for her prop­erty.

She sought a per­ma­nent in­junc­tion to re­strain ex­er­cise of the mortgagee’s power of sale, hav­ing ar­gued that the mort­gages were reg­is­tered on her prop­erty without her knowl­edge or per­mis­sion. Collins filed a de­fence and coun­ter­claimed for US$159,805.

Jus­tice David Batts threw out Fritz’s case at the end of Septem­ber, after hear­ing ar­gu­ments in July, and gave the go-ahead for Collins to re­cover the monies owed.

Lawyers for Fritz said they are still get­ting in­struc­tions from their client on whether to ap­peal Jus­tice Batts’ rul­ing. Ac­cord­ing to court doc­u­ments, Fritz is a busi­ness­woman and owner of Dar­nel Fritz En­ter­prise, an in­for­mal com­mer­cial im­porter in­volved in the pur­chase and sale of goods. Fritz told the Supreme Court that she and Collins had a long-stand­ing busi­ness re­la­tion­ship, him be­ing her freight for­warder. Even­tu­ally, Collins be­came a buyer’s agent and she started to buy from him in­stead of di­rectly from sup­pli­ers. Around year 2000, he of­fered and she ac­cepted a line of credit of US$40,000 and there­after or­dered goods “on con­sign­ment” from him, ac­cord­ing to Fritz’s ev­i­dence. Fritz stated that around 2008, Collins, who has of­fices in Ja­maica and the United States, or­dered goods from Provee­dora Jiron Inc and gave her a credit ar­range­ment. She re­ceived sev­eral such ship­ments be­tween 2008 and 2010, and “when­ever I got goods from Provee­dora, they were paid for and re­ceipts ob­tained from the de­fen­dant’s com­pany”, she said. Ac­cord­ing to the court judg­ment, in 2010 Collins asked Fritz to sign a credit fa­cil­ity of up to US$88,000 and told her that the monthly pay­ments would be US$1,100.

Fritz de­nied ow­ing the money claimed, say­ing that she re­ceived two con­tain­ers, which ar­rived in Ja­maica on Novem­ber 8, 2010 and that she fully paid for the goods.

How­ever, Batts found that as Fritz’s buy­ing agent, Collins would ex­tend credit, grant loans or make ad­vances on her be­half over time; and that up to Oc­to­ber 2010, her debt to him, in­clu­sive of the first mort­gage over her house in St An­drew, amounted to US$138,974.

Batts found that there was an agree­ment be­tween Fritz and Collins that her to­tal li­a­bil­ity would be set­tled at US$128,000 and a fur­ther mort­gage of US$88,000, over the same premises, would be granted in or­der to se­cure the debt.

In other words, the judge said, the to­tal due, US$128,000, would be se­cured by both mort­gages.

Fritz failed to pay the sum due in its en­tirety, Jus­tice Batts found, not­ing that as at April 1, 2016, she was in­debted to Collins in the sum of US$159,805 (about $20.5 mil­lion) for prin­ci­pal, in­ter­est and late fees.

In dis­miss­ing the claim, Jus­tice Batts said there was no ba­sis to pre­vent Collins from ex­er­cis­ing his power of sale un­der the mort­gage.

Fritz was rep­re­sented by at­tor­neys Paul Beswick, Ge­or­gia Buck­ley and April Grap­ine-Gayle, while Collins was rep­re­sented by at­tor­neys Michael Hyl­ton, QC, and Shanique Scott.


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