Court Summons – How The Problem Started
Receiving a court summons:
My wife lost her job and we started default on our bond and vehicle account. Before we knew it we were 3 instalments in arrears and we started receiving calls from call centres 2 or 3 times per day. The callers were rude and very hostile. We approached a large debt counselling firm in Umhlanga. They put a proposal to our creditors which allowed us to catch up on the arrears over a 24 month period. We paid the R 18 000 fee to the debt counselor. The banks did not accept the proposal. They wanted us to pay an amount we could afford only if we sold our home. Then we received the summonses. The debt counselor advised an application for debt review cannot be made after a bank summons. Can you help us?
– Pravesh from Durban
The Solution for Receiving a Court Summons
We gave Pravesh and his wife the good news. The banks did not terminate the application for debt review before the summons which means they were not permitted to issue such summons. The Court hearing the summons claim can give an order of debt review for one or more of their debts.
Only 10 days
You only have 10 days to defend the bank’s summons. Speak to an experienced attorney to act on your behalf. Use an attorney who is qualified as a debt counselor. Don’t run out of time!
Tips
Here are a few tips:
- While the summons is being defended you are safe from the Sheriff.
- Credit providers settle most defended credit matters amicably before it goes to trial.
- Mark all your correspondence with the collectors “ without prejudice” so your efforts to settle cannot be used in evidence against you if the matter goes to Court.
- Do not permit any party from entering your property unless it is the Sheriff with a Court order to do so.
- Do not hand over your vehicle to anyone other than the Sheriff who has a warrant of delivery stamped at Court.
- If you are unsure phone 10111 and a police officer will come and verify their identities.
Be brave!
Receiving a bank summons is SCARY !!!
Free advice
We will start giving you some free advice as soon as you send your first email or WhatsApp.
A recipe for success
We achieve success in Court – view a few reported cases:
- Zammit and Another v Standard Bank of South Africa Ltd (7593/10) [2011] ZAKZDHC 84 (2 June 2011) https://www.saflii.org/za/cases/ZAKZDHC/2011/84.html
- Wesbank, A division of Firstrand Bank Ltd v Jogee (5722/2010) [2012] ZAKZDHC 2 (27 January 2012) http://www.saflii.org/za/cases/ZAKZDHC/2012/2.html
- Mncwanga v Absa Bank Limited (13922/2018) [2022] ZAKZPHC 61 (21 October 2022) http://www.saflii.org/za/cases/ZAKZPHC/2022/61.html
We know what to do to help you.
Hi, I hope you can help me. I started a restaurant/takeaway business about 5 years ago and then was unable to carry on during Covid-19 restrictions in April 2020. I signed personal surety for most of the supplier credit. I entered in to a number of payment arrangements which I honoured but around R 180 000 worth of creditors were not prepared to make a deal. The one collecting agent is now threatening me with “sequestration” which they say will result in all my assets being taken away from me, I cannot open a business and I cannot have a bank account.
Hi, my company took credit with a supplier in Pinetown, KwaZulu Natal, for R 195 000. Due to loadshedding, we missed a few installments and have been trying to negotiate a payment arrangement ever since. A collection agency is now demanding payment of the whole amount. I pointed out to the collection agent they are obliged to send me a demand in terms of section 129 of the National Credit. She refused saying that because the consumer is not a natural person, the National Credit Act does not apply to the situation. Is this correct?
Hi Jonathan, the NCA does apply where the principal debtor is a company, and the credit is less than the threshold of R 250 000. This means the loan is not enforceable unless: the creditor is a registered credit provider; the credit provider has provided statements of account; the credit provider has delivered a section 120 notice to the debtor; has provided a detailed calculation of the amount claimed etc. Give us a shout and we will give you a free consultation.
Will my household items/other assets be attached for non response to a Summons for an credit debt?
Hi Tia, yes unfortunately unless you take preventative steps, that is exactly what will happen? Bear in mind that even if your are in default, the creditor must comply with the National Credit Act and/or the Consumer Protection Act. If there is no compliance, the summons can be defended on this basis. It makes sense however you at some stage consider an out of Court settlement eg you resume instalments; you sell the vehicle of property to a family member or a trust you form at the same time; you trade the vehicle in.
Your consultation, you mention is free, i got a couple of questions. How long is this consultation, and do you only deal with Durban matters, as i noticed you are in Durban?
Hi Fortunate, the free consultation can go up to 30 minutes. The solution to the convenience problem is the person emails their documents and we converse telephonically or by WhatsApp. Our focus area is Pietermaritzburg – Durban – Stanger – Ramsgate, but we also do High Court work in Gauteng (their filing system is online).
you mentioned bond and vehicle foreclosure, it sounds all technical, i am lost.
Hi Fortunate, “foreclosure” happens when you have taken finance to purchase an asset which is security for a debt and you then default on the payments. If you finance a car the bank gets the right to repossess the vehicle on default over any other creditor. The bank does this by reserving ownership of the car until the finance is paid off. It works in a similar way with a bond but the property is then security for the bond liability. The bank does this by registering a mortgage bond on the property. The bond gives the bank first right to whatever money the property is sold for. The bank commences “foreclosure” by issuing a Court summons. We can help you negotiate terms with the bank even after the summons arrives. If the bank has not complied with the formalities, we can defend the bank summons on your behalf. Come for a free consultation.
I need legal assistance. I want to negotiate a reasonable amount for my debt. I bought a house in 2020 (which i am still paying for) but i just feel like the monthly amount which we agreed on is not affordable anymore. Please let what to do.
Hi Samantha, your one option is to apply for debt review. The idea behind the concept is you will pay your smaller debts off and will then be able to resume a higher instalment on your bond. The downside is you will not get any finance until the application for debt review is removed from your credit profile. Make sure the bank has your current physical address so you do not miss out on any notice they might send or the summons, if it comes. If there is a Court summons, we ensure the credit provider complies with all the requirements of the National Credit Act and the Consumer Protection Act as well exploring the settlement option further. I hope this helps.
Thank you for your answer. i think i have a better understanding following your explanation. these credit records you mention, how much do you charge?
Hi Fortunate, we will do a TransUnion ITC check for R 50. We offer a free in person consultation for bond and vehicle foreclosure defense enquiries. We give free advice for other types of enquiries until we know enough to give a quote. No offence if a prospective client does not come on board.
The bank rejected my vehicle loan application. They said my credit profile has a judgment listed against my name.I have no idea of this judgment. Can you assist.
Hi Fortunate, if you send us a copy of your id card and give us permission to check your personal credit bureau records, we will obtain a printout of your current Transunion ITC, XDS and Compuscan credit bureau records. The judgment details will be listed on there. You have a number of options. The one is to pay the listed debt and the credit bureau will remove the listing within 7 days. if the judgment was incorrectly granted, we can apply for the rescission of the judgment granted in terms of the Court summons. Unfortunately, you will probably not be granted any credit until the listing comes off your profile. There are other mechanisms available eg a stokvel. Does this answer your question?
What is the point of not allowing an application for debt review after receiving a bank summons? Are you sure? That is when we need it most.
Hi Chetana, yes it seems unfair doesn’t it. The good news is you can still have your case heard after you receive the Court summons. Firstly, the Court hearing the trial of the summons has the power to grant an order of debt review to an individual who is over indebted. Secondly, the credit provider / bank must comply with a list of prescribed formalities otherwise the summons claim can be dismissed on that basis alone. We manage to amicably settle most of these matters before it gets to trial. I am of the view that trying to force an application for debt review after summons has VERY little prospects of success.
What number do I use to make the appointment?
Call Rashni on 031 267 0396 or send a WhatsApp to 0762998130.
The principal debtor is me – in person.
Hi Carl, section 130 of the National credit Act stipulates that a credit provider cannot “enforce” a credit agreement until it has complied with section 86(10) or section 129 of the Act. “Enforce” normally means the issuing of Court summons. If you have not applied for debt review (you cannot apply for debt review on a debt after you are served with a Court summons) section 86(10) does not apply. Section 129(1) prescribes inter alia that the allegation of breach and your right to apply for debt review must be brought to your attention in writing. The Courts require actual delivery of the section 129 demand by registered mail unless you frustrate delivery by not collecting your registered mail. Failure to comply is a defense to the summons. Remember you only have 10 Court days (working days) to defend the summons otherwise default judgment can be granted against you. You can defend the summons. Often it is better just to negotiate settlement. Come in for a free consultation.
Hi Charles, thanks for the call. If I apply for debt review, what formalities does the credit bank have to comply with before issuing summons?
Hi Jonathan, one formality is that the bank has to terminate the consumer’s application for debt review in terms of section 86(10) of the National Credit Act before it can proceed with a summons. Contact Rashni on 031 267 0396 and arrange a consultation. First consultation free. 👍
I received a court summons for payment of an old debt. They put up a demand in terms of section 129 of the National Credit Act which the say the sent to me but I never received it. How do I respond to the summons?
Hi Carl, is the prinicpal debtor you in person or your company?
Are you saying that once summons is issued I cannot make application for debt review?
Hi Johnathan, is it Johnathan or Jonathan? Yes, a consumer is limited to making application for debt review of a debt before summons is issued by the credit provider. The summons debt will be excluded from any application for debt review made after the summons is issued. Having a debt review for only some of your debts is often not worthwhile. We can assist you after you receive the summons. We can also assist you where you have made application for debt review and your proposal is nor accepted by one of the credit providers. The truth is that there are a whole lot of formalities credit providers have to follow before they can issue summons. Even where all the formalities are complied with, the Court hearing the summons matter has a discretion to give an order of debt review in respect of that debt and your other debts. I hope this is good news. Check the case report for Zammit and Another v Standard Bank of South Africa Ltd (7593/10) [2011] ZAKZDHC 84 (2 June 2011) on the saflii website of case reports for background.
I will call you on Monday.
Thanks for the helpful info! Are you able to assist with summons from a loan company as well? If so, What must I do next?
Yes we can assist you with defending a credit summons. Email a copy of the summons to charles@cwhlaw.co.za and we will advise you from there. Our staff will then arrange a free consultation for you.