ADVICE ON DEALING WITH POSSIBLE REPOSSESSION OF A CAR
This article deals with the laws of repossession in South Africa along with the available remedies if you are dealing with repossession of a car. Debt Counselling is considered as an option to a consumer who is behind on their vehicle repayments.The debt review process and procedure is explained fully below along with a step by step guide. Our Debt Counsellors will be able to guide you further should you require assistance.
Your vehicle is one of your most prized assets. It is often responsible for your day to day commuting especially to work. It is important to note that whilst you do have the right to use the vehicle, the vehicle at all times remains the property of the credit provider who advanced the vehicle finance. You only become the legal owner after payment of your final instalment and after you receive the log book.
If you have a motor vehicle and have fallen behind on your monthly repayments you may face legal action by creditors. However, when such action is taken , there are various aspects and rules of law that must be adhered to when enforcing action.
AS DEBT COUNSELLORS THESE ARE THE TWO MOST FREQUENTED SITUATIONS WHEN AN INDIVIDUAL IS FACING REPOSSESSION OF A CAR
LEGAL REPOSSESSION OF A CAR AS ORDERED BY A COURT
This process is initiated with a summons and then finalized at Court resulting in a legally enforceable court order which authorizes the repossession via a warrant of execution. Always ensure that you scrutinize the court order. Ensure that it is original and contains a court stamp.
We have many clients who seek legal help pertaining to voluntary surrenders. This usually occurs when a debt collector, acting on the instruction of the credit provider who advanced the loan, visits. It is important to question the debt collector as you have many rights that may not be infringed upon in terms of the National Credit Act 34 of 2005.
Know that you are NOT OBLIGATED to sign the form. As the terms suggest it is a voluntary surrender. You may want to seek legal advice before signing any legal document. You may contact us as we have practising attorneys in our legal division who will be able to dispense proper and sound legal advice to you.
SOME AVAILABLE SOLUTIONS WHEN FACED WITH A REPOSSESSION OF A CAR IN SOUTH AFRICA:
1. DEFEND THE SUMMONS
If you have received a summons for debt, it is always advisable to act quickly. There may be justifiable reasons for you to defend the action. Your creditor may have taken action and you may want to settle the outstanding amount owing on your motor vehicle to prevent it from Repossession. Your contract may allow you to settle the arrears in instalments. Look at the smaller writing within the contract and if you don’t have a copy ask the creditor to send you one. It is vitally important to ensure that your creditors have your latest contact details which include your physical address. Your Domicilium citandi et executandi, simply put is the address which you legally choose to receive legal documents. If you change your address it is always advisable to convey same to your creditors as this cannot be raised as a defence unless good cause exists. A s129 notice and summons will be served at your chosen domicilium. Note however that the s129 notice will usually be sent via registered mail to your nearest post office.
2. REGARDING VOLUNTARY SURRENDER
You may wish to surrender the vehicle to prevent unnecessary legal costs being added to the outstanding balance that you already owe along with the arrears. Maybe you have been retrenched or simply can’t work anymore due to health reasons. You should always remember that it is trite in law that a consumer must maintain payment for their vehicle every month . You cannot unilaterally decide to stop paying for the vehicle. If there is a justifiable reason then you should still speak to the credit provider, alternatively you may call us for free advice on the situation.
3. DEBT COUNSELLING IN SOUTH AFRICA TO PREVENT REPOSSESSION OF A CAR
Debt Counselling is governed by the National Credit Act 34 of 2005. If a consumer is unable to pay their debt in a timeous fashion, they may be over-indebted and may be able to apply for debt review with a registered Debt Counsellor. You may find that you are missing payments for certain credit agreements (credit cards, store cards, personal loans) because there just isn’t enough income left to pay them after accounting for your monthly living expenses. What we have found is that consumer’s usually struggle in paying back their credit card debt along with personal loans due to the extremely high interest rates. It is important to maintain payments on your vehicle because it is considered a secured asset and may be repossessed. Do not ignore your creditors whom you have taken out loans with as this may have a detrimental effect on your wellbeing and income especially if you are garnished. You should consider paying for all your debt and if you are still unable to do so, then maybe a debt review application could prove beneficial to you as a consumer. We assist nationwide. The entire process can be finalized via email or over the phone.
IS DEBT COUNSELLING A GOOD IDEA?
Yes Debt Counselling is definitely a good idea and a viable solution when you facing future repossession. If you are facing future repossession of your motor vehicle you may be able to prevent the repossession if you are proactive. The moment creditors start calling or texting for payment, know that the ball is rolling and you are walking on thin ice. It is only a matter of time before they issue out a s129 Notice to you. The s129 notice is issued at any time provided you have been in default for 20 days or more. You will then have 10 days to contact our Debt Counsellors.
The consumer is obligated to collect the registered letter. (The fact that he chose to not collect the letter is no defence in law )- Kubyana v Standard Bank of South Africa Ltd
Creditors are not allowed to take any legal action against you if you apply for debt counselling. This will completely derail their efforts to repossess your vehicle..
HOW DOES DEBT COUNSELLING WORK? CAN DEBT COUNSELLORS HELP ME?
Debt counselling is by far the best choice if you are over-indebted and facing possible legal action or repossession. A trained debt counsellor who is registered with the National Credit Regulator will assess your current debt situation. We are Debt Counsellors (ncr registered – NCRDC 2584) and are linked to credit bureaus. We will uplift your credit report so that all credit agreements may be considered for inclusion under debt review. A Form 16, is an Application for Debt Review. It will contain information crucial to the Debt Counselling process such as your current income (gross and nett), day to day living expenses (groceries, transport, insurances, school fees, rent) along with your current debt exposure (credit cards, retails cards, loans, motor vehicle finance, bond)
SUMMARY – THE DEBT COUNSELLING PROCESS TO PREVENT REPOSSESSION OF A CAR:
REQUEST ASSISTANCE – Complete the Contact Form or Call 0871355025
DEBT REVIEW ASSESSMENT –Our Debt Counsellors will call you back at a time convenient to you. We will complete a Form 16 with you to establish your current income, living expenses and debt situation. We will then notify all your creditors that you have applied for Debt Counselling.
DOCUMENTATION REQUIRED FOR DEBT COUNSELLING – You will then send all the required documentation to us (ID, Payslip, Bank Statement)
PRACTICAL APPLICATION – After you are placed under Debt Review you will have immediate legal protection against creditors who will no longer be able to harass you. The Payment Distribution Agency will create and deduct a monthly payment via debit order which will be distributed to your creditors All fees are included in the payment plan which we create. Our attorneys will appear in court and request that the Magistrate presiding over the matter confirms the debt rearrangement proposal in the form of an Order of court. Once you settle all your debt you will be issued with a clearance certificate and you will be credit active again.
If you wish to apply for debt counselling and require a free assessment or advice visit our home page. Complete the contact form and a debt counsellor will make contact with you .Click here.
You may also email our offices – firstname.lastname@example.org
or call 087 135 5025
further reading see:
Zonda v Nedbank Limited – reference for repossessions relating to surety agreements
Standard Bank of South Africa Ltd v Dlamini (2877/2011) – reference for defective motor vehicles, repossessions and voluntary surrender – Standard Bank ordered to pay costs.