How to keep the sheriff from taking away your furniture
What do you do if the sheriff of the court shows up at your door to confiscate appliances and furniture from your home?
If that wasn't bad enough, imagine that it was because of a small debt you thought you had paid long ago.
Depending on the terms and conditions of a contract, a service provider like a private security company can hand over your account to its attorneys to collect any money it believes you owe.
Next, a default judgment can be taken against you when you don't defend the claim brought by that party.
A judgment stains your name
Try to avoid a judgment at all costs. A judgment is when a court orders you to pay an outstanding amount and it will remain on your credit report for five years.
If you pay the full amount owed before that time, the judgment will be removed from your credit report as soon as the credit bureau receives either proof of payment from the credit provider or a valid court order rescinding the judgment, according to Salem Dyafta, the brand manager at TransUnion.
The process leading up to a judgment and the attachment of your possessions to pay off a debt is as follows:
- Letter of demand: You may receive a letter of demand from a creditor or attorneys acting for a creditor. It must be sent by registered mail. Never ignore a letter of demand, respond to it within the time period provided or a summons can be issued.
- Summons: A summons is issued out of the court where you, the debtor, live or work. Once issued, the summons is sent to the sheriff for him to serve on you.
- Default judgment: If the claim outlined in the summons is not settled within the time period provided in that summons and you do not express your intention to defend yourself, the creditor may apply for default judgment.
- A warrant or writ of execution: If a default judgment is granted, a warrant of execution can be granted. This is an application to court to attach movable property - in other words, your personal possessions that can be removed, but not something that cannot be moved such as your land and your house or flat.
The sheriff then makes an inventory reflecting the goods that are under attachment and their valuation. The creditor can then instruct the sheriff to remove the goods and to arrange for them to be sold on auction.
Understand the 'execution' process
Once judgment has been obtained against you, what is known as the execution process begins. Hanoneshea Hendricks, the national legal manager of civil at Legal Aid South Africa, explains how it works:
After someone to whom you owe money, known as a creditor, has obtained a judgment against you, the creditor can instruct the sheriff to collect what the judgment states that you owe.
The sheriff will do this by coming to you and asking you to pay the money. If you do not pay, the sheriff can make a record of the movable property that he can see or find that will satisfy the amount you owe according to the judgment.
Then the sheriff will ask your creditor what property he must attach or take and sell on auction.
If the creditor says proceed, then the sheriff will proceed. The sheriff acts on the warrant of execution, the notice of attachment and the instruction of the creditor.
Hendricks said the sheriff must produce the notice of attachment and a copy of the warrant of execution.
"The warrant of execution is signed by the court based on the judgment that was obtained, either by the magistrate or the clerk of the court.
"The notice of attachment must be signed by the execution creditor. It need not be signed by the sheriff. If not signed by the magistrate or the clerk, you can question whether it was a valid judgment and execution.
"If the notice of attachment is not signed by the execution creditor, you can challenge whether the sheriff had a mandate to proceed with the attachment," said Hendricks.
She said that if you find out about court proceedings for the first time when a sheriff comes to your door, immediately seek legal advice. Legal Aid South Africa can help you, at no cost.
"A person who has a valid defence can approach a court and bring an application for rescission [cancellation] of the judgment. This application means that you first explain to the court that you were unaware of the legal proceedings and that, secondly, had you been aware, you would have defended the matter as you have a valid defence."
She said when you bring an application for rescission, you also ask the court to stay or stop execution proceedings.
"If your application is successful, the court rescinds the judgment and grants you permission to defend the matter."
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