Asked by the Customer on 06-01-2015 23:41:47
Question posted in the General Law category relating to Gauteng
Question posted in the General Law category relating to Gauteng
Hi
My query is about legal fees related to the issuing of summons for outstanding levies for a sectional title property.
The summons was issued by the sheriff on the 17th September 2014. The trustees issued the resolution on the 13th September 2014. The lawyers actioned it on the 15th September 2014.
The outstanding balanced the summoned was issued for was R6094.17. This amount was based on payments made up to 8th September 2014.
On the 8th of September a payment of R800 was made and on the 10th a payment of R2700 was made.
My argument was that On the 13th of September the balance outstanding was R2594.17.
Thus the trustees failed to check the bank accounts for payments on the 13th (the date they resolved to instruct the lawyers to issue the summons) and thus the amount the summons was issued for was incorrect, hence I feel that because the summons was for the incorrect amount it is not valid and I should not be liable for the fees for this.
Furthermore the lawyers claims that a second summons was issued on the 31st of October 2014. I have never seen or received this summons and because for this reason and the fact the the first summons was factually incorrect I should not be liable for these fees as well.
Please advise if I am correct in disputing the fees I am liable for and would you assist in drafting a letter to contest this.
Regards
Prashanth
My query is about legal fees related to the issuing of summons for outstanding levies for a sectional title property.
The summons was issued by the sheriff on the 17th September 2014. The trustees issued the resolution on the 13th September 2014. The lawyers actioned it on the 15th September 2014.
The outstanding balanced the summoned was issued for was R6094.17. This amount was based on payments made up to 8th September 2014.
On the 8th of September a payment of R800 was made and on the 10th a payment of R2700 was made.
My argument was that On the 13th of September the balance outstanding was R2594.17.
Thus the trustees failed to check the bank accounts for payments on the 13th (the date they resolved to instruct the lawyers to issue the summons) and thus the amount the summons was issued for was incorrect, hence I feel that because the summons was for the incorrect amount it is not valid and I should not be liable for the fees for this.
Furthermore the lawyers claims that a second summons was issued on the 31st of October 2014. I have never seen or received this summons and because for this reason and the fact the the first summons was factually incorrect I should not be liable for these fees as well.
Please advise if I am correct in disputing the fees I am liable for and would you assist in drafting a letter to contest this.
Regards
Prashanth
Message from the Attorney
Posted by Att. Patrick on 07-01-2015 11:44:04
Hi there and thank you for your question,
From what I understand, the summons was issued on 15 September for arrear levies for an amount of R6094.17, instead of the amount of R2594.17 that was actually due and owing as you had already made 2 payments -- R2700 plus R800.
Your question is accordingly whether the summons is invalid because the amount claimed is wrong.
The short answer is unfortunately No, the summons is NOT invalid (or null or void) because the amount claimed is wrong.
You would however have a proper legal defence to part of the claim (i.e. to the amount of R3500 that you paid) in that part of the claim has been settled. I don't know what defence you would have to the remaining portion of the claim - the R2594.17...
The body corporate could have legally issued a summons for R100 if that was all that was owing. You would then be liable for the legal fees and costs incurred.
My advice is to borrow money from family/friends to settle the full amount TODAY. If you do that, then the legal fees will stop running. If you continue to fight the summons, the attorneys will be entiteld to charge legal fees for every phone call, email, letter, sent/received, and all of those costs will be for your account.
I don't know why a second summons would have been issued. That is very strange to me. At any rate, if it has not been served on you then you can't be held liable for those legal fees.
So, unfortunately you're not right in disputing the legal fees incurred. I'm sorry. Please follow my advice and settle the arrears AS SOON AS POSSIBLE, then you will get out of further legal fees.
I'm here if you need further help!
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
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From what I understand, the summons was issued on 15 September for arrear levies for an amount of R6094.17, instead of the amount of R2594.17 that was actually due and owing as you had already made 2 payments -- R2700 plus R800.
Your question is accordingly whether the summons is invalid because the amount claimed is wrong.
The short answer is unfortunately No, the summons is NOT invalid (or null or void) because the amount claimed is wrong.
You would however have a proper legal defence to part of the claim (i.e. to the amount of R3500 that you paid) in that part of the claim has been settled. I don't know what defence you would have to the remaining portion of the claim - the R2594.17...
The body corporate could have legally issued a summons for R100 if that was all that was owing. You would then be liable for the legal fees and costs incurred.
My advice is to borrow money from family/friends to settle the full amount TODAY. If you do that, then the legal fees will stop running. If you continue to fight the summons, the attorneys will be entiteld to charge legal fees for every phone call, email, letter, sent/received, and all of those costs will be for your account.
I don't know why a second summons would have been issued. That is very strange to me. At any rate, if it has not been served on you then you can't be held liable for those legal fees.
So, unfortunately you're not right in disputing the legal fees incurred. I'm sorry. Please follow my advice and settle the arrears AS SOON AS POSSIBLE, then you will get out of further legal fees.
I'm here if you need further help!
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Hi
Thanks for the reply.
I am not in dispute of the amount owing. I have made subsequent payments.
I have made arrangements with the trustees such that no new legal action is to be taken (Hence no new fees)
So I am still liable for the fees even though the summons was factually incorrect?
Second
The second summons was never received, I would like to contest this with them.
Please assist with wording/drafting a reply to them in this regard(which I'm willing to pay for).
Regards
Prashanth
Thanks for the reply.
I am not in dispute of the amount owing. I have made subsequent payments.
I have made arrangements with the trustees such that no new legal action is to be taken (Hence no new fees)
So I am still liable for the fees even though the summons was factually incorrect?
Second
The second summons was never received, I would like to contest this with them.
Please assist with wording/drafting a reply to them in this regard(which I'm willing to pay for).
Regards
Prashanth
Message from the Attorney
Posted by Att. Patrick on 07-01-2015 13:01:27
Hi,
"So I am still liable for the fees even though the summons was factually incorrect?" --> Unfortunately yes, unless the trustees agree that those fees will be waived. I'm sure that the rules of the body corporate will include a rule that says "any legal fees will be passed on to the member".
"The second summons was never received, I would like to contest this with them." --> Why don't you ask the body corporate for a copy of the summons so that you can find out what it is for, and so that you can make arrangements in that regard as well? Explain that you don't want to incur legal fees, and you want to settle it.
Dear Trustees of the _____ Body Corporate,
Following on from our previous discussions, please can you urgently provide me with a copy of the summons that was issued in my name in or about October 2014. The summons has not yet been served on me by the sheriff. I would like to settle the matter directly with you, the trustees, however I need to know what the summons is about. I don't want the body corporate to incur any further legal costs.
Looking forward to your urgent reply.
Something short and simple like the above should be more than sufficient, especially if you're already in contact with them.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
"So I am still liable for the fees even though the summons was factually incorrect?" --> Unfortunately yes, unless the trustees agree that those fees will be waived. I'm sure that the rules of the body corporate will include a rule that says "any legal fees will be passed on to the member".
"The second summons was never received, I would like to contest this with them." --> Why don't you ask the body corporate for a copy of the summons so that you can find out what it is for, and so that you can make arrangements in that regard as well? Explain that you don't want to incur legal fees, and you want to settle it.
Dear Trustees of the _____ Body Corporate,
Following on from our previous discussions, please can you urgently provide me with a copy of the summons that was issued in my name in or about October 2014. The summons has not yet been served on me by the sheriff. I would like to settle the matter directly with you, the trustees, however I need to know what the summons is about. I don't want the body corporate to incur any further legal costs.
Looking forward to your urgent reply.
Something short and simple like the above should be more than sufficient, especially if you're already in contact with them.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Thanks once again
Regarding the second summons.
I am really not interested in seeing it. It is probably for monies outstanding and I have made payments and arrangements with the trustees. I get my monthly statements and fully aware of what my outstanding balances are.
I just don't want to pay the R1800 odd that they are charging me for it and it has not been served on me yet.
I want to write a response informing them that the summons was not received and I am not willing to pay the associated fees because of this.
Regards
Prashanth
Regarding the second summons.
I am really not interested in seeing it. It is probably for monies outstanding and I have made payments and arrangements with the trustees. I get my monthly statements and fully aware of what my outstanding balances are.
I just don't want to pay the R1800 odd that they are charging me for it and it has not been served on me yet.
I want to write a response informing them that the summons was not received and I am not willing to pay the associated fees because of this.
Regards
Prashanth
Message from the Attorney
Posted by Att. Patrick on 07-01-2015 15:52:09
Hi there,
In terms of your rules of the body corporate, the body corporate may very well be legally entitled to recover ANY legal fees from you in relation to the collection of arrear outstanding levies. By joining the body corporate you would have agreed to that! So, legally the body corporate might be acting within their powers, and could force you to pay the R1800 legal fees. Practically, the body corporate should write this off as they had already issued an earlier summons. You should only have to pay for 1 summons - not 2.
If the body corporate has "difficult" trustees, then they might not agree to write it off, and you'll then be forced to pay it.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
In terms of your rules of the body corporate, the body corporate may very well be legally entitled to recover ANY legal fees from you in relation to the collection of arrear outstanding levies. By joining the body corporate you would have agreed to that! So, legally the body corporate might be acting within their powers, and could force you to pay the R1800 legal fees. Practically, the body corporate should write this off as they had already issued an earlier summons. You should only have to pay for 1 summons - not 2.
If the body corporate has "difficult" trustees, then they might not agree to write it off, and you'll then be forced to pay it.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Hi
I understand that the trusteesare legally entitled to issue a 2nd summons and I am required to pay the associated fees. I am not contesting that
My argument is that i never received it , therefore I believe the the lawyers never issued it hence I cannot be charged for something that was never done.
In the case of the first summons I did receive it and therefore cannot argue against paying those fees.
Regards
Prashanth
I understand that the trusteesare legally entitled to issue a 2nd summons and I am required to pay the associated fees. I am not contesting that
My argument is that i never received it , therefore I believe the the lawyers never issued it hence I cannot be charged for something that was never done.
In the case of the first summons I did receive it and therefore cannot argue against paying those fees.
Regards
Prashanth
Message from the Attorney
Posted by Att. Patrick on 07-01-2015 16:15:31
Hi again,
The trustees would need to prove to you that the work that the attorneys charged them for (i.e. letter of demand, issuing summons, etc) was actually done. If this means that the trustees will need to provide you with copies of those documents as proof, then they must do that! Most certainly.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
The trustees would need to prove to you that the work that the attorneys charged them for (i.e. letter of demand, issuing summons, etc) was actually done. If this means that the trustees will need to provide you with copies of those documents as proof, then they must do that! Most certainly.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Answer Accepted
This answer was accepted on 07-01-2015 16:32:35
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