I was served summons for late payments w...

Asked by DDanon on 31-08-2023 09:19:15
Question posted in the General Law category relating to Gauteng

I was served summons for late payments with my home loan in May 2021.I went to.the attorney and proposed a repayment plan which was accepted.  However my follow-up email on where to process the payments or reinstate the bond debt order went unanswered. Calls the directly to bond provider BMW led me nowhere as i was informed that BMW no longer does home loans. Despite this i made payments using the account i had on the statement.  I then defaulted again on payments as my company fell on hard financial times. In 2023 the same attorneys served me with unopposed default judgment application which relied on the 2021 summons. I filed the notice of intention to defend and now have 2 days left of the 15 days to respond. My business is now up and running and in a position to resume payments as well as service the outstanding amount i owe from defaulting.

Further information relating to Question:

I wish to propose repayment proposal for the outstanding amount whilst resuming normal bond debt order payments

Message from the Lawyer

Posted by Att. Patrick on 31-08-2023 11:36:23

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. 

I think what you need to do is to file a plea setting out your defence to the claim. I think that your defence to the summons is that you proposed a settlement of the arrears, and that proposal was accepted by them. That should then be the end of the summons, because it was settled. 

If you breached the settlement agreement (i.e. the repayment plan) then what the lender should be doing is issuing a NEW summons. I do not understand how they could rely on the old summons in this instance.

I think that you should set this out in your plea, and also in a "without prejudice" letter to the attorneys and explain that your business is now up and running and in a position to resume payments as well as service the outstanding amount that you owe from defaulting.

If you do not file your plea, then they could take a default judgment against you. 

You must ensure that it is quite clear from your plea (it can be as long as you want it to be) that there was a settlement agreement which was reached, which settled the matter.  You should also show the court that you complied with the settlement proposal, and that you actually made payments in terms of the repayment plan

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