The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bank of The Bahamas’ “hopelessly deficient case” has left it unable to enforce a guarantee for a near-$600,000 delinquent mortgage owed on a property in south-west New Providence’s Coral Vista subdivision.

The Court of Appeal, in a unanimous ruling, overturned an earlier Supreme Court Order by Justice Gregory Hilton that mandated Simeon Peter Cooper help repay $593,291 plus interest to the BISX-listed bank in his role as guarantor for the mortgage owed by Betty Joe Antasha Cooper (nee Smith).

Dismissing the case against Mr Cooper, appeal justice Stella Crane-Scott found that Bank of The Bahamas had provided no evidence to show that he was liable for the debt in his role as guarantor.

Backing the arguments of Mr Cooper’s attorney, Bahamas Bar Association chairman Khalil Parker, she wrote: “We have given anxious consideration to the contending arguments and agree with Mr Parker that the bank’s pleaded case vis-à-vis Mr Cooper (as guarantor) is hopelessly deficient. Quite simply, there is no evidential basis in the bank’s affidavit to establish the liability of the guarantor.”

Appeal justice Crane-Scott added that “there is absolutely no case pleaded case against Mr Cooper” in the affidavit of Bank of The Bahamas official, Paulette Butterfield. “Furthermore, it is undeniable that a true copy of the guarantee was not exhibited to the Butterfield affidavit, and the original Guarantee and the other securities were not produced at the” Supreme Court hearing in violation of the latter’s rules, she added.

“As the pleadings against Mr Cooper failed to comply with the basic rules of pleadings or with the applicable rules of court governing mortgage actions, it is clear that these three grounds [of appeal] must succeed,” appeal justice Scott-Crane ruled.

“The bank’s pleaded case vis-à-vis Mr Cooper (as guarantor) is hopelessly deficient. The claim against Mr Cooper was very poorly pleaded, and further provided no evidential foundation for the bank’s claim against Mr Cooper as the guarantor.”

As a result, the Court of Appeal overturned the Supreme Court Order and dismissed the case against the guarantor. The mortgage loan in question was originally taken out in February 14, 2006, and up-stamped with further charges in June 2007 and January 2009. Mr Cooper only allegedly came into the picture as guarantor for the third and final transaction.

The Supreme Court’s Order made both himself and Betty Joe Antasha Cooper liable to repay Bank of The Bahamas, and to hand over the property in question so that the latter could sell it. However, Mr Cooper reacted sufficiently quickly that his appeal was filed within five days of Justice Hilton’s Order.

His first ground of appeal rested on whether Justice Hilton made an error in not adjourning proceedings after his attorney requested more time to file a defence, and instead proceeded to final judgment. “Regrettably, the verbatim transcript for the hearing which took place before the learned judge on March 13, 2020 was unavailable,” the Court of Appeal found. 

“Indeed, we were told there was no verbatim transcript of what transpired. This undoubtedly made Mr Parker’s task of convincing us that the learned judge’s decision not to grant an adjournment, and to enter final judgment against both defendants, was unreasonable or wrong in law exceedingly more difficult.

“Regrettably, without having had sight of the verbatim transcript, we were unable to impugn the learned judge’s decision not to adjourn the matter.” Bank of The Bahamas was represented at the appeal hearing by attorney Nadia Wright.