One of the easiest things to get into, is debt. It is also the hardest to get out of. When you make repayments on your assets such as furniture, a vehicle or your property, you stand the very real chance of losing it all.
Review Online spoke to Gert Ehlers, an attorney at DDKK Inc. about your rights in a situation where, for whatever reason, you simply cannot afford your repayments, your creditors start to take action and your assets are attached by the court sheriff.
"A debt collector must instruct a sheriff to attach or remove your possessions and can only do so if a judgment was granted against you and a warrant of execution was issued by the civil court, authorising the sheriff to attach your property," Ehlers says.
The process of attachment by the sheriff entails that the sheriff will compile a list or inventory of the items found at the premises where your belongings are kept, usually your home. The inventory will describe the item attached and also an estimated value. 'Judicial attachment' means you may not sell or dispose of the items attached, in other words, the items on the inventory.
Ehlers goes on to say the sheriff will usually first attach your property and not immediately remove it: "The sheriff will store your belongings or some of your belongings, depending mainly on the amount of the outstanding judgment debt and the value of the assets. He or she must attach enough of your belongings so that the judgment debt will, if possible, be settled if the belongings are sold on public auction."
If the judgment debt is not settled after the attachment, the sheriff may be instructed by the judgment debtor, the entity or person in whose favour the judgement was granted against you, to go to your premises again in order to remove the goods listed in the inventory. The goods removed are taken to the sheriff's office where they are kept safe.
You have the right to know who claimed from you and for what amount the judgment was granted against you. From the court documents, specifically the summons, you should be able to note what the claim is based on.
What may be attached, removed?
Almost any kind and all your property may be attached, provided that a court authorised such attachment, says Ehlers.
"Only property actually belonging to you may be attached and not property in your possession but which belongs to someone else. You may, for instance, have a TV in your apartment that belongs to a friend. Sheriffs must explain the content of the document they are serving you with, and may not attach or remove necessary items such as food, beds, bedding and clothes. Subjected to certain guidelines, they may not remove any tools that you may rely on to earn a living."
What procedures must the debt collector follow?
Ehlers says if the claim against you was based on credit granted to you, the first step is to demand payment from you.
"A letter of demand, complying inter alia with Section 129 of the National Credit Act should be given to you. You should have been served with a summons unless you consented in writing to the granting of judgement against you without first receiving a summons."
A sheriff is to serve the summons to you. You may be served legally with the summons without actually receiving the summons. The sheriff may affix a copy of the summons to the main door or gate of your home or might hand it to a domestic worker. A summons may also be served at your place of employment or at an address chosen by you in an agreement with the judgment creditor.
"If you fail to defend the claim set out in the summons against you, the plaintiff may apply for default judgment to be granted against you, where after the court may authorise the attachment of your property by issuing a warrant of execution. The warrant of execution mandated a sheriff to attach and remove your belongings to be sold on a public auction."
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