# Regulatory Compliance Category > National Credit Act Forum >  Debt Judgment procedure

## AndrewD

What is the procedure for a company to get a debt judgment against a person?

I received a phone call from a person claiming alleged debt of 8 to 10 years ago. Firstly I did deal with this company but I am sure I do not have outstanding debt and do not recall this alleged outstanding debt. I told him that after 3 years the prescription law apply. He said that I have a debt judgment against me from 5 years back. I told him that it is the first I hear about this, I was never informed. My postal address and telephone nr. is the same for more than 10 years. He reached me by this same phone nr. which is on their files. So, if they have my phone nr, why did they not inform my before now?

Also, I do not keep any legal documents regarding debt and such for more than 5 years, how do I prove anything?

So, is such a one sided judgment valid?

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## Dave A

> Also, I do not keep any legal documents regarding debt and such for more than 5 years, how do I prove anything?


You got this the wrong way round - they need to prove *their* case.

Ask for a copy of the judgement. Might be an idea to get your free credit report on yourself too.

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## AndrewD

Thanks, I will do that. 

If there is a judgement, is there not a legal procedure to first notify me of the intent to do so? They did have my contact details.

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## Dave A

Sometimes it's your recorded _domcilium citandi et executandi_ with them that causes notification problems.

But even if they have judgement, if it's from five years ago and they've done nothing since to execute, it could also get interesting.

Anyway, let's not get ahead of ourselves - step by step. They claim the debt has not prescribed by virtue of judgement obtained. Time for them to provide evidence, otherwise there is no next step.

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## Chatmaster

> Thanks, I will do that. 
> 
> If there is a judgement, is there not a legal procedure to first notify me of the intent to do so? They did have my contact details.


Get the case number and the name of the court and try and see if can get the default judgement rescinded so you can actually get your chance to state your case.

This is simply my opinion but...
The way default judgments are being taken are in many ways "criminal". The complete process can happen without you knowing it. The only part that should be (but aren't) fair is when the sheriff of the court come and staple a piece of paper against your door (domcilium citandi et executandi) and then you have been notified. The court doesn't care if you have seen it, the court doesn't care if it was ever really served and the court doesn't really care if it was actually the correct address. So if the sheriff says you have been served and you are not in court, a default judgement is taken against you. This indirectly means that whether or not you actually do owe money is insignificant to the court because you didn't appear in court. This happens to 1000's of South Africans daily.

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Dave A (11-Dec-10)

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## sterne.law@gmail.com

In terms of once a judgement is taken - a person has 30 years to act upon it - no prescription there.
Domicillum is used for service of documents and a person must inform the relevant parties when domicillum changes.

I agree with Dave ask them to furbish the proof of judgment. There are plenty of companies that collect outstanding money on commision basis and use these type of tactics.

If they can do so you can then explore your options. you can have the judgement rescinded but if you do owe the money you will still need to pay it provided teh collection procedures were started before teh debt prescribed. if the debt had prescribed it does not mean that it falls away. prescription is a defence taht you can raise at a S65 hearing.

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Dave A (11-Dec-10)

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## AndrewD

Thanks for the replies.



> Domicillum is used for service of documents and a person must inform the relevant parties when domicillum changes.



At the time of the alleged judgement my address was still the same as before when I did deal with the company. Until recently the property was stil in ownership and occupied by a family member. Also, if a person believe his business with a company is complete, for how long should he inform them about any address changes after completion.

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## sterne.law@gmail.com

I think you are going to find there is no judgement or without doubt a flaw in the service process.

But again one returns to - is the money owed? In that case your business with the company was not and is not complete.

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## ABCAB

What do you do with a company that has a judgment against you even after the full debt was paid. They just feel that other institutions should be aware that you could be a risk to them. Nedbank pushed me into a corner a few years back when I was 1,5 months in arrears on my house. I put it up for sale and sold in three days. The bank got there 700K four months after that, yet I have a judgment against me. Now I even have cases where I have had jobs offers declined because I am listed.

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## Dave A

It's been many, many years since I had to deal with this. Back then, the trick was to ask for a letter confirming the debt judgement as settled and date of settlement. 

From there, if judgement was taken in a magistrates court, you might be able to get the judgement rescinded. If the judgement was taken in high court - well, you'd have that letter and a story to tell in mitigation. Sometimes it helped; sometimes not. Generally it meant five years without access to finance.

I don't know how much that scenario might have changed in recent years.

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## Jill

HI this is very interesting. I had a judgement taken against me when my company closed about 7 years ago. Now the judgement time seems to be over the company have got some attorneys to claim the money from me. I received an sms stating that I owed a huge amount of money but I thought that if judgement was taken then the company could not start all over again and take another judgement. Before they took judgement I offered to pay a small amount evey month to cover the debt -tehy refused this and took judgement. The debt would have been paid not if they had accepted.  What should I do now?

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## Dave A

Am I the only one going "ouch"? On the face of it I don't see much wriggle room here.

Was it a summary judgement taken in a magistrate's court and is there any chance there was a flaw in procedure?
(He says grasping at straws).

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## AndyD

If they have a judgment and it's legally solid then you should probably expect the sheriff of the court soon to attach property to the value of the judgment. It might be worth getting legal advice but it's most likely trying to close the gate after the horse has bolted and possibly incurring costs for no benefit.

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## wynn

I find it strange that the sheriff processes the notice of judgement to an address where you may have been 10 years ago but knows exactly where to execute that judgement when he needs to?

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## Jill

I have sorted it out and have arranged to pay off the outstanding debt without any interest. Win win all round

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## Dave A

:Cool:

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## AndyD

Sounds like a sensible compromise. :Thumbup:

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## BryanCasson

Be sure that the judgement actually exists! I went to the court and asked for my file... opened it up and it was empty. ICT had already blacklisted me as they received a letter from who knows where to do so. I went straight to the Klerk of the Court and asked what was happening. Within a week they had informed ITC to remove me as there was no existing judgement. Be aware that ITC does not do their homework when presenting you with a judgement. They don't check where the documents come from of if the case even goes to court. . Anyone can send a default judgement even if no money is owed, ITC process the judgements even if you have gone to court with the intention to defend. Just an accusation will get you blacklisted. In my opinion this is criminal!

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## hiddyboy

Good Day Folks,

I need some advice. I have a debt collector claiming to be representing the Bank claiming an alleged debt. First off, the bank is in Ireland and the debt collector is in the US.
Yes folks, the good 'ol US of A. The alleged debt dates back to early 2010. I had an issue with the bank when my account was compromised electronically. I was led to believe it was sorted but now this. I have moved back to SA. The bank initially sent me correspondence in 2010, after which I querried it. The amount is well under R100K. 

Do they have any type of jurisdiction? He has been calling me trying to be intimidating and I have asked him to stop.

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## Dave A

When I've had debtors skip the country, I've been told I can institute legal action against them in their new country. Normally I'd get a judgement here first, and then institute action offshore. Obviously this is only worth it if there's enough money in play - and in my situation, generally there isn't.

I expect the same principle applies in reverse.

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## hiddyboy

That might be true but I expect it to apply to huge sums. The sum I am talking about is minute in comparison. And to institute legal action offshore would be too costly in relation to the alleged debt. I would challenge any judgment with a recission anyway because of a few material issues, the most important being I didn't skip a debt. Then we can face each other in court. Anyway, if I hold them off another year or so it will have prescribed, barring any judgement.

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## Linz

[QUOTE=AndrewD;42525]What is the procedure for a company to get a debt judgment against a person?

Almost the same thing happened to me.
6 years ago in June of 2008, I was contacted by a law firm notifying me that I have been handed over for an unpaid doctors account, which I have never received due to the receptionist making an error on my postal address. In July I paid the account at the law firm in cash R950 and received a hand written receipt as proof of payment. Since then I have not been contacted again by this law firm.

Last week when applying for an account I was declined due to a judgment on my name, which i had no knowledge of. I requested a credit report and discovered that the judgment filed against me was for the above mention account and it was done a whole year after I have made the payment in full. 
I received no summons no notification whatsoever.

I contacted the law firm to get the proof of procedures followed and the judgment application, just to get told that they have no record of my payment, neither do they have my file any longer because they destroy files that are older than 5years old, even though according to them they have no proof of me paying the account.

I also don't have proof anymore as I know I paid my account and I have not been contacted by them since I discarded the proof as I thought it was resolved. 

What can I do?

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## debtors101

In February 2010, the sheriff attempted to execute on a judgement by a bank against me. As I did not own any property at the time, the sheriff filed a nil return. It appears to me that the debt has now been ceded to a firm of attorneys that are now hounding me for payments. Can a creditor take any further steps to collect on a judgement after the sheriff filed a nil return?

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## Dave A

> In February 2010, the sheriff attempted to execute on a judgement by a bank against me. As I did not own any property at the time, the sheriff filed a nil return. It appears to me that the debt has now been ceded to a firm of attorneys that are now hounding me for payments. Can a creditor take any further steps to collect on a judgement after the sheriff filed a nil return?


Your problem here is that a judgement has been taken, so the debt only prescribes after 30 years. (More on prescription periods here).

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## Jenn

Please can someone help me with some advice- 7 yrs ago I went through a divorce wherein I relinquished ownership of a property I co-owned with my ex-husband. We were married ANC with accrual.

In my deed of settlement, it makes reference to this and 'claims against the estate' whereby it outlines that each party will be liable for any debt owed to creditors and will accept this debt as their own.....nevertheless in Feb I discovered that I have a judgment against my name for levies which my ex-husband has not paid. This debt was accrued after my divorce.
I tried obtaining written consent from the body corporate to rescind the judgement against my name because I do not own this property but they refused, all summons/interaction has been addressed to my ex. He has not removed my name from the bond nor does he want to co operate. I live in a rented property with my daughter and cannot be responsible for his debt. What can I do to clear my name?

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