Category: Banks

South African Banks together with Sheriffs of the High Court in Bond Scandal

Consumer Guardian Services (Pty) Ltd (CGS) has discovered that various banks in South Africa have illegally overcharged Bond account holders in excess of R1 billion in illegal fees. These fees include non taxed legal fees; bond interest rates calculated on these illegal fees as well as overcharged interest on wrongly calculated bond balances.

According to Johan Muller (Managing Director) of CGS, a Cape Town based company this practice of illegally overcharging clients has been in existence for more than 20 years. To make matters worse, according to a publication by the National Credit Regulator, ABSA, First National Bank (FNB), Nedbank and Standard Bank agreed in December 2010 that no homes will be attached and sold until 30 June 2011.

Despite this undertaking, more than 1400 homes per month have been sold on instruction by these banks through the Sheriff of the Court since December 2010. To add insult to injury various Sheriffs are working in tandem with private syndicates who buy these properties, in some instance at 30% of the debt value and immediately then re-sell these properties to third parties.

Johan Muller who personally settled in excess of R90 million of overcharged interest with South African Banks, has embarked on a mission to expose these ill gotten profits and rightfully recover the overcharged amounts. The problem which most home owners face once the sheriff sells the property to the syndicate, the client is blacklisted for hundreds of thousands of rands.

CGS has successfully interdicted the transfer of many of these ill gotten properties on behalf of many clients based on the fact that the bank has made errors on the balances claimed from the client. Certain banks are buying their own properties back for a nominal amount, but nevertheless hold the bondholder responsible for the balance. Muller has personally been offered bribes from syndicate members in excess of R100, 000 “just to make the file go away”! He has also received many calls and threats from sheriffs who complained about his interference with sales of execution of properties.

Muller has knowledge of certain attorneys acting on behalf of banks, sheriffs and syndicates enriching themselves at the expense of the distressed home-owner. Muller has first-hand experience of certain sheriffs owning up to 3 luxurious homes and up to 9 cars. CGS employs various attorneys to assist home owners in their defence against the banks and the cancellation of execution sales by the sheriff.

For further details contact Johan Muller on 021-3000 150 or facebook: consumer guardian services.

You and Your Rights – Insolvency

When you cannot pay your debts (because they exceed your assets), you are said to be insolvent.

Although insolvency itself is not a crime, criminal charges can often follow the sequestration of an estate. These may be for not having kept proper records of transactions or for common law crimes such as fraudI (for instance, by obtaining credit by claiming that you can pay for goods when you know that you cannot).

If you’re insolvent, you can seek an out-of-court settlement with your creditors, surrender your estate, or in some cases apply to the magistrate’s court for an administration order. In certain circumstances, your estate may be sequestrated as insolvent at either your own initiative or that of acreditor.

Sequestration proceedings are designed to freeze an insolvent estate and to place it in the hands of a trustee, who liquidates it and distributes the proceeds among its various creditors.

If your estate is sequestrated after you have become insolvent, you may, subject to certain conditions, apply for rehabilitation. If your application is successful (if you are rehabilitated), the court will declare that you are no longer an insolvent and that you are free to trade and contract.

Sequestration possible without prior NCA enforcement procedure

This was the finding of the Supreme Court of Appeal in Naidoo v ABSA Bank Limited [2010] ZACSA 72 which follows the previous judgment in Investec Bank Limited v Mutemeri 2010 (1) SA 265 GSJ which held that sequestration proceedings are not, in themselves, legal proceedings to enforce an agreement within the meaning of section 129(1)(b). A sequestration application is instituted not for the purposes of claiming something from the consumer but for the purpose of declaring the consumer insolvent. Sequestration proceedings are therefore not proceedings for the recovery of a debt. This argument is not overridden by section 130(3)(a) of the NCA even though, on one reading, the section suggests that all proceedings of which the underlying cause is a credit agreement must fall within the ambit of the NCA enforcement proceedings. Section 130 only deals with the enforcement of a credit agreement.

In the course of the judgment the court also indicated that the word “enforce” when used in section 129(1)(b) is not used in the narrow sense of enforcement of a contractual obligation but is used in the wider sense that includes cancellation of the agreement followed by cancellation remedies. This is a sensible approach that the court is likely to follow in future. It has already been the approach followed in ABSA Bank Limited v de Villiers 2009 (5) SA 40 C.

The credit provider may therefore sequestrate the consumer without pursuing section 129 enforcement proceedings under the National Credit Act. The sequestrating creditor still has to show that sequestration is in the interests of creditors.

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