Breakdown of events• On the 10th of...

Asked by Akhutshiso on 01-09-2020 09:08:41
Question posted in the National Credit Act Law category relating to Eastern Cape
Question value: R 450.00

Breakdown of events• On the 10th of August 2017 I signed an offer to purchase a property (22 Echola Street Motherwell Port Elizabeth) • Rakesh Sam attorneys were then instructed to convey the transfer by the seller, after ABSA Bank approved my home loan application.• The transfer was initially lodged on the 7th of November 2017 and finally registered under my name on the 22nd of January 2018.• ABSA Bank then transferred monies amounting to R415 000 for the sale of the property to the seller.• On the 2nd of February 2018 the seller moved out of the property and I was due to move in, a third party came with documents from the high court stating that they owned 50% of the estate and that the seller fraudulently sold the property.• I went to the police station and came back with officers to help mediate, the officers could not help with the matter, so they suggested that we take it to court.• I called the estate agent and conveyancers to inform them about the matter and I was told that the property was registered under my name and that the 3rd party had no claim over the property. • On the 5th of February 2018 I went back to the property where I found that the 3rd party had taken residence, I informed the real estate agent and Rakesh Sam Attorneys who then referred me to an eviction lawyer (Brian Maqungu Attorneys).• At the time I did not have the mental/emotional appetite to drag the matter further this resulted in me making the decision to not pay for the bond in hopes that the bank would reposes the house and sell it.• A court judgement was issued(attached copy) to transfer the property back to the estate, efforts were made to trace and contact the seller to reimburse the monies paid to no avail, this means that I would be left with the burden of paying off a home loan without a home.

Questions:

-what obligations does absa bank have since there won't be any collateral for the home loan 

-what are my options going forward?

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Information Requested by Lawyer

Posted by Att. Patrick on 01-09-2020 10:11:29

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship.

Are you able to send a copy of the court judgment to me at caselawja <at> outlook.com?

Att. Patrick

Answer to the Question

Posted by Att. Patrick on 02-09-2020 15:14:15

It looks like you have gotten into the middle of a family dispute regarding ownership of the property. It looks like Vuyiswa took control of the estate and sold the property to you when she was not legally allowed to do so. Then, the heirs came along and complained about this, and the High Court set aside your sale and transferred the property back into the estate. 

The full story is set out in the founding affidavit - which I assume that you've read.

Your issue is that you still have a loan with ABSA Bank for the purchase price that you borrowed from ABSA Bank. That loan has not been cancelled and actually continues to exist. You will need to continue making payment in terms of the loan agreement. 

The issue for ABSA Bank is that their security (the property, and the mortgage bond) are now GONE and that means that they are at risk if you don't pay. This isn't ideal for them, but they could still attach your other assets (e.g. car, furniture, etc) in order to recover the loan.

What you need to do is to find the seller (The first respondent) and sue her for the return of your money. She has your money, you lost the house, she was not legally allowed to sell the house to you, so she must give your money back - with interest. 

You will then be able to repay ABSA Bank under your loan agreement with them.

Information provided by client

-I have tried to trace the seller and it looks like they passed on last year, still trying to get proof of this.
-is there no arrangement I can make with ABSA Bank that is backed by the credit act?

Answer to the Question

Posted by Att. Patrick on 02-09-2020 16:19:20

If you find the seller, you can always file a claim against their estate! The executor of the estate will then need to deal with your claim. This might be a good thing, because the executor might simply accept the claim and pay you out!

Q: Is there no arrangement I can make with ABSA Bank that is backed by the credit act? --> No. Not that I have ever come across. Sorry. 

Answer Accepted

This answer was accepted on 02-09-2020 16:47:12

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