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Friday Oct 06, 2017

Hope for home owners in arrears

Home owners who default on their bond payments should not despair as they will not lose the property if they pay before the property is sold.

This was the message from a Gauteng High Court judge, who said people often threw in the towel when they received an order that they had to repay the outstanding bond, as well as an order declaring that the property may be sold so that the bank could recover its losses.

Acting Judge JG Rautenbach said: "In my view the normal reaction by any lay-person receiving such an order or writ of attachment (of the property) is to throw in the towelÂ… The court will play lip service to the constitution if it does not in its orders either make an order or some note to the effect that should the arrears be paid before the sale of execution, the parties would be in a position that they were in before the debtor fell into arrears."

This, the judge stressed, was provided that the debtor would be liable to pay all the costs incurred by the creditor in terms of the processes it followed to collect the debt.

Judge Rautenbach went on to say that in general the court had no duty to provide legal advice to people appearing before it. But it was the duty of the court, with lay people appearing before it, to advise them of this important right they had which had serious consequences for affected people if they were not so informed.

These comments were sparked by an application by Veronica Duma against Absa, which had obtained a default order (where a case was not defended and in her absence) against Duma for the repayment of bond of R459 584. The court declared the property executable, meaning the bank could sell it to recover losses.

Duma asked the court to rescind the order, as she was unable to defend it. The judge found that there was nothing irregular in the manner the bank obtained the order as she simply failed to challenge it in court.

The bank had obtained its order in 2015 already and the property was supposed to be sold on execution on November 11, 2015. This was, however, placed on ice pending her rescission application, which was only heard now.

Duma complained that she over the years tried to resolve the problem with the bank, but it would not listen to her. She said while she fell on tough financial times, she may be in a position in the future to pay the bond. The judge said he was not in a position to tell the bank how it should negotiate with its clients.

Her application for having the order overturned was thus turned down, but the judge did stress that this was not the end of the road.

He remarked that these cases usually involved lay people who either did not have the knowledge or the funds to defend these actions. Court orders regarding home owners falling in arrears and not defending these matters were ususally standard.. But people should know there is hope if they pay before the property is sold.

Pretoria News

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