Legal Action

 

SECTION 129 & SUMMONS 

A section 129 letter notifies you that you are in default and offers you several ways to remedy the default.

The amendments to the National Credit Act clarify that a section 129 notice issued by a credit provider does not constitute legal action against you, but rather serves as notice of impending legal action should you ignore the letter and the remedies it offers.

Source: Personal Finance 21 March 2015

 

SECTION 129 NOTICE

The letter states the following: "We propose that you refer the agreement to a debt counsellor, alternative dispute resolution agent, consumer court or bank ombudsman, with a view to resolving any dispute under the agreement or developing and agreeing to bring the payments under the agreement up to date."

THIS IS WHERE WE CAN ASSIST YOU TO AVOID  DEBT REVIEW.

 

Letter Of Demand - Section 129 Letter

  • This letter is sent either by your credit provider or their attorney.
  • The larger credit providers send you a letter that states clearly on the top portion of the letter, that this is a notice in terms of Section 129 (1) of the National Credit Act 34 of 2005.
  • Smaller credit providers normally send it as a Final Demand Letter that addresses Notice in terms of Section 129.
  • This letter must to be sent via registered mail to consumers. 
  • Whether you collect the letter or not, the fact that the creditors have issued the Section 129 stands in court if they can prove it was sent to you via registered mail, and delivered to your address.
  • The letter requests you to call the creditor to make arrangements. Do not ignore this request.
  • It is always best to deal with the creditors in writing. Keep a copy of times, dates and the persons you have dealt with as this is a very important issue when consumers make arrangements.
  • The letter also refers you to see a debt counsellor, alternative dispute resolution agent etc. However, if you have received this letter before being placed under debt review, the debt counsellor cannot help you on the particular account number that the letter was served on.
  • Section 129 is enforced from the date the creditors or their attorneys issued the letter.
  • Check the date that has been listed on the letter, to the date the letter was posted.
  • Often letters have been sent where the dates do not correspond.
  • For example - if the letter is dated 1 January 2015 but it was only sent on the 4 April 2015.
  • This letter also advises that it is the creditors intentions to take further legal action.
  • Creditors warn consumers that should they ignore this letter, they will enforce their rights to issue a summons which could result in a sale of execution on your property.
  • A further warning is issued, when creditors advise that they intend to supply adverse information through to the credit bureaus.

 

SUMMONS - HIGH COURT & MAGISTRATES COURT

As soon as you are served the Summons you must take immediate action.

Understand that there is a limited time frame that you must respond to in order to defend the summons.

For a Magistrate Court Summons it is usually 10 business days. Business days excludes Saturdays, Sundays and Public Holidays.

For a High Court Summons, it is usually between 10 - 20 business days in which a notice of intention to defend must be filed.

It is highly recommended that you use an attorney in all High Court matters as the law can become complex and extremely technical.

Consumers have the right to defend themselves, but it is not advised if you have no legal background.

The most important factor to remember when being served with a summons is that the action being taken by your credit providers needs to be defended.

If you do not defend the summons, you can be guaranteed that creditors will take a judgement against your name.

 

IT IS VERY IMPORTANT TO NOTE THAT A SUMMONS IS ALWAYS SERVED ON THE CONSUMERS CHOSEN “DOMICILIUM CITANDI ET EXECUTANDI”.

In simple English, it is the address you gave when the credit application was granted.

It is highly recommended that you inform all your creditors in writing of any new physical address and keep a record thereof.

Creditors can only send legal notices out to the chosen “domicilium”.

It is in your best interest to know when a creditor wants to enforce their rights and starts legal proceedings against you.

Mistakes can happen whereby creditors may start legal action in error.  

If you do not know about the legal action, you may lose your home or spend thousands of Rands in trying to correct what could have been a simple error to mend.

 

Our advice is never sign an AOD.

1. If an attorney/debt collector sends you an AOD and you sign it, you will lock yourself into the debt, possibly for years. The debt might have prescribed, been written off, bought by someone else, and it is possible that you do not have to pay it any longer. By signing it you are locked in. Which means that you will have to pay up!
2. An attorney who tries to get you to sign an AOD can actually take judgement against you without even going to court. They can try and trick you or intimidate you into sIgning. DO NOT SIGN IT.
 
If you receive an AOD and do not know what to do, call us and we will see how we can help you.