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Need a Judgement Removed? We Can Help, Nationwide
Firstly, What is a Default Judgment (Judgement)?
A Judgment is a court order requested by your Credit Provider when you have defaulted or not paid your debt. A summons is then issued to you. This summons does not necessarily have to be issued to you in person but can be issued to your domicilium (residential address or where the individual has agreed that notices maybe served in the event of a breach of contract).
If you fail to respond to the summons or fail to appear at the court proceedings, the Judgment is issued or granted in Default.
The Judgment is then held or recorded on the system of Credit Bureaus for five years from the date on which it was granted.
How can a Judgement be Removed?
Credit Bureaus will not remove a Judgement unless it has been rescinded in either the High Court or Magistrates Court through a rescission application,
Or he 5 year data retention period has lapsed/expired.
The Removal of a High Court Judgement (Rescission Application)
Where the judgment was granted in the High Court, it is usually not essential that the judgment debt ( full bond amount) is settled in full in order to have the judgment cancelled or rescinded. If the account is still active and in existence (you are still paying bond installments etc.), then it is essential that at least the arrears on the account be settled and/or the account would have to have been properly maintained/serviced for at least 6months – to a year following settlement of the arrears. This will enable us to submit a proper motivation to your creditor for obtaining a supporting consent to the rescission application, or an abandonment of the judgment.
An application to have a High Court Judgement Rescinded (Rescission Application) can generally take place if:
In terms of the High court rules, we need to prove that judgment was taken/sought- or granted in error and/or that you were not in willful Default of this account. In order to do this, we must try to prove the following:
• You made reduced but irregular payments on your account in at least the last 3-6 months before judgment was granted; and we need to show the court that you had exceptional circumstances which resulted in you falling into arrears with your account; and/or
• That you had some sort of payment arrangement in place with the creditor and/or their attorneys (or that you were at least in contact with them prior to the judgment date) and that they informed you/let you to believe that they will halt legal proceedings provided you make specific payments and/or provided you continue making reduced payments (whatever the terms of the agreement was); and/or
• Whether you received proper notification of legal action, the letter of demand and summons and afforded a reasonable opportunity to defend the proceedings
The fact that an account or the arrears might be paid up, is a good thing (and will be used as part of the rescission argument), but unfortunately it is not any basis for bringing the rescission application in the High court. In the High court, even the consent from the Creditor or their Attorneys to Rescind the Judgment, is not a basis on which the application may be brought (but such consent will be used to positively support the application). We have to attempt to prove that the Judgment was sought or granted against you in ERROR, that there was a payment arrangement in place; and/or that legal notices was not properly received etc.
The Removal of a Magistrates Court Judgement (Rescission Application)
An application to have a Magistrates Court Judgement Rescinded (Rescission Application) can generally take place if:
• The Judgement debt or account has been settled and/or
• The Creditor or its Attorneys have consented to the Rescission Application
• There are sufficient grounds to prove that judgement was erroneously granted or that there are sufficient grounds to make out an argument that you were not in wilful default of the account and/or had no knowledge of the judgement or legal proceedings.
Maricha Brits Attorneys specialize in Rescission Applications and can assist you, Nationwide.
FORMAL CONSULTATIONS AT THE OFFICE, IN ALBERTON ARE BY APPOINTMENT ONLY
Maricha Brits Attorneys is registered with the Law Society of the Northern Provinces under Practice Number 13532