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Not So Cut And Dry

Recently, the Mahikeng High Court told one of the big banks that their claim that summary judgment should be granted because the consumer had no real defence was incorrect.

If a credit provider wants to get permission to try sell off your home when you have been missing payments, they will often approach a court and ask that the matter be decided now, quickly, not in 3 years time when a court date opens up to argue about the matter.

Often they will say that the consumer (eg. the homeowner) has no real defence because of all their evidence and becuase the consumer is behind on payments.

They will ask for a summary judgment.

The court then decides if this is the case or if the matter must go onto the waiting list for dates and be argued about in detail. Banks and their attorneys obviously like to get things sorted out quickly so they can move to sell off the property on auction and make some of their money back asap.

Recently, a client of one of the big banks fell behind on payments on a long running loan.

The loan had originally been with Saambou then it moved to BoE before finally ending up with the big bank in question.

When Mr Dry fell into arrears of R 38 839.00 the bank decided it was time to take the property and sell it off. 

In his defence against the application for summary judgment, Mr Dry raised a number of interesting points that the court felt needed to be examined in more detail (this is why they said no to the application to rush things along).

Mr Dry asked if the attorney who works for the bank doing collections was an impartial commissioner of oaths, why the balance had gone from R38 000 to over R224 000 (he argued the math does not math) and why the bank employee swore they had seen all the paperwork transferring the bond from Saambou to the new bank, since it was not included in the court papers.

The court turned down the application for summary judgment and agreed that these are interesting questions.