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Thread: Rescission of judgement

  1. #21
    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by Dave A View Post
    Obviously first prize is a negotiated settlement agreement where each party is responsible for their own legal costs

    My concern arising from the case above is MZEly appears to have been seeking a settlement, but did not know what to do at that point to press vigorously for a settlement and ensure a judgement was not taken against him.
    The irony is that a settlement which is an offer to pay can be made directly to plaintiff’s attorney right up to the point before judgment is actually granted i.e. they served summons, judicial process is already underway. Even here, it would have been in everyone’s best interest to accommodate any request to make payment. From what I can deduce there are many defendants who reached a settlement with the plaintiff while the matter was already in the courts hands. The plaintiff should see it as you basically want to pay. It’s possible that the attorneys in question felt that a judgment debt with legal costs will work better for them as they aware that the defendant can pay. So why pay less and when you can pay so much more with the legal costs.



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    Unhappy

    Quote Originally Posted by Vanash Naick View Post

    The irony is that a settlement which is an offer to pay can be made directly to plaintiff’s attorney right up to the point before judgment is actually granted i.e. they served summons, judicial process is already underway. Even here, it would have been in everyone’s best interest to accommodate any request to make payment. From what I can deduce there are many defendants who reached a settlement with the plaintiff while the matter was already in the courts hands. The plaintiff should see it as you basically want to pay. It’s possible that the attorneys in question felt that a judgment debt with legal costs will work better for them as they aware that the defendant can pay. So why pay less and when you can pay so much more with the legal costs.



    I agree, I tried contacting them for 2 years and they just failed to return my calls. When i asked the lady at the attorneys office what am i paying for she send me the fax i sent them in 2009 which proves to that they received all my calls, faxes ect... so why could they just not pick up the phone or send me a letter. I still have the same phone number I had 4 years ago. Honestly I feel that this was just an unfair judgment i was not running away or trying not to pay them, i was doing the what i was suppose to trying to contact them to pay. What do they do send me to court.

  3. #23
    Site Caretaker Dave A's Avatar
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    MZEly, I certainly empathise with your frustration (I think we all do). The problem right now is it seems the opportunity to rectify their failure to respond to your "non-court efforts" might already have been missed. And for your part, you have failed to respond correctly to their "court process driven efforts".

    Yes, unwittingly on your part, I'm sure - but the nature of law means you remain responsible and accountable for this lapse on your part regardless.

    Unless someone comes up with a better idea, the best I can hope for now is to at least equip you (and anyone else who might read this discussion) as to how to prevent ending up in this situation in future.

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    Hi Everyone

    I hope someone can give me some advice.

    My client entered into a rental agreement with an attorney who subsequently obtained default judgment against him for late payment penalties i.e. paying the rent on the 3 Jan and not 1 Jan. As I understand it, he missed one month rental, and then the Attorney (Plaintiff) suddenly put in a claim for all the month's late payment penalties even though he did not enforce this provision before. To cut a long story short, we want to settle the debt (judgment debt was R17 400) but the attorney is demanding R40k to settle this. Furthermore, the rental agent is willing to do an affidavit to state that no outstanding rental was owing, as this was subsequently settled by my client. The only thing he can claim is late payment penalties. Furthermore. this attorney is refusing to engage with us and will not give us a break down as to how he got to the R40k. My client wants to settle all outstanding monies actually owing, but not if it is not owing.

    Please help!

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    Diamond Member Citizen X's Avatar
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    Hi Ashsan,

    The Attorney is obliged to provide you with a statement which shows how he arrived at that figure.

    Try this:
    Email him/her and state the following:


    Dear Sir/Madam,



    I would like to enquire as to which law society you are registered with so that I may file a complaint against you for not granting my request for a detailed statement as to how you arrived at the amount of R40 000 when judgment debt was for R17 000.

    Your statement should reflect legal costs and all other costs associated with this amount such as interest etc.



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    Great thanks, have just given him until C.O.B tomorrow to give us a statement, otherwise I will report him to the Law Society. He is clearly taking a chance, and then says HE wants to do the rescission, even though I have my own attorney to do the rescission for probably a tenth of his fees.

    Thanks again

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    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by Ashsan View Post
    Great thanks, have just given him until C.O.B tomorrow to give us a statement, otherwise I will report him to the Law Society. He is clearly taking a chance, and then says HE wants to do the rescission, even though I have my own attorney to do the rescission for probably a tenth of his fees.

    Thanks again
    I am aware that there are some unethical practitioners out there!
    Hey, you can actually do the rescission yourself:

    Have a look at this link:

    http://www.theforumsa.co.za/forums/s...rney?highlight=
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    Hi

    Quick update and maybe some feedback please

    SO i got quick response from this attorney. He says he is in hospital but gives me a verbal non-nonsensical break down of the costs, i.e. because my client was "aggressive" he had to send a senior partner out to the premises (absolute rubbish first I have heard of this).

    We have since ascertained that the amount we owe is R10200 excluding costs (no rental outstanding, just late payment penalties so the summons is wrong!!) We have proof that we paid all rental. HE says he wants R30k. And he will not budge. I then said we cannot accept and he says we can get a cost consultant to do it and he will fight this aggressively, and assures me the costs will be in excess of this. I offered R20k in full and final settlement. But he wont accept. I am thinking I need to get a good lawyer onto this. but with limited funds, their fees could be more. Any advice? I am entitled to a breakdown of his legal fees surely? I thought we would only be liable for reasonable costs incurred.

    Thanks so much

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    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by Ashsan View Post
    Hi

    Quick update and maybe some feedback please

    SO i got quick response from this attorney. He says he is in hospital but gives me a verbal non-nonsensical break down of the costs, i.e. because my client was "aggressive" he had to send a senior partner out to the premises (absolute rubbish first I have heard of this).

    We have since ascertained that the amount we owe is R10200 excluding costs (no rental outstanding, just late payment penalties so the summons is wrong!!) We have proof that we paid all rental. HE says he wants R30k. And he will not budge. I then said we cannot accept and he says we can get a cost consultant to do it and he will fight this aggressively, and assures me the costs will be in excess of this. I offered R20k in full and final settlement. But he wont accept. I am thinking I need to get a good lawyer onto this. but with limited funds, their fees could be more. Any advice? I am entitled to a breakdown of his legal fees surely? I thought we would only be liable for reasonable costs incurred.

    Thanks so much
    Instruct an attorney to take the matter on review on the basis that you were never served with a summons..
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  10. #30
    Platinum Member sterne.law@gmail.com's Avatar
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    Maybe spend a grand or two and get an opinion.
    Firstly on a rescission application or similar to nullify judgement.
    Secondly, the actual merits. From the amount of penalties it seems the calculation was over a prolonged period. Although most leases have a waiver clause, not charging tenant may constitute a waiver.
    There is a good chance the contract may fall short on the CPA aspect of contract terms.
    I suspect, when the 1 month was in arrears, the attorney decided to claim the penalties to make the court trip worthwhile.
    The money spent on the consult will at least determine if its worth negotiating further, or settle, or tell him to take a hike.

    I suspect that the court papers and procedures were probably not 100 percent truthful, a fact that the law society and the court may not be happy with.
    You should get the court file so that you have all the info at hand.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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