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Suing a money lender

A Fin24 user wants to know if he has grounds to sue a money lender or a debt collector, or both. He writes:

I used to borrow money from a cash loan company and the last transaction was in 2006.

I do not remember if I paid them or not, because it's a long time ago.

According to the contract, they took my card and PIN and withdrew money when I got paid.

Last year I saw a garnishee order on my payslip, and when I contacted the company they said I took a loan of R8 000 for a one-month term.

I was not earning more than R4 600 per month during that time, and they refused to give me a copy of that contract.

The court did send me garnishee documents and it stated that the loan was granted in 2011, but i was not working in that year.

The documents that they said I have signed and given concent to judgement on had a signature that is not mine.

I have proof of this, because the day they said I signed that document, I was out on a business trip and have reservation details from the hotel I was booked in that day.

When I threatened to report them for unethical conduct, they reduced the balance by R2 000.

They have admitted in writing that the agent they sent to me is the one who forged my signatures. I have proof of my communication with the collector.

Nichola Woodard of HWD Attorneys responds:

There are a number of issues raised in this query, some of which are unclear.

From my interpretation of the facts presented though, the primary objective should be to apply to have the garnishee order set aside on the grounds that the debtor did not in fact consent to judgment as alleged.

You would need to approach the relevant court for these purposes, and you would need to appoint an attorney.

Pro bono (free) legal assistance is available through the Law Society and certain specific pro bono offices should you not be in a position to pay for such legal representation.

There are relatively strict requirements regarding who qualifies for pro bono legal services, and you should contact the Law Society of the province in which you live for more information.

When approaching the court, factors to be considered include whether the claim prescribed before judgment was taken (typically a debtor has to enforce a claim for monies owed within three years) as well as the unlawful act of confiscating the reader's bank card.

With regard to the alleged fraudulent conduct, you are entitled to lay a separate criminal charge and with regard to the alleged unethical conduct, to report such conduct to the Law Society.

These options will not assist you though in halting the garnishee order or claiming back monies (you will have to approach the court for such relief as discussed above).

This advice is based on assumptions made from the information as received from you, and can only be a general outline of a potentially complex matter.

It is always a good idea to obtain further advice before taking action.

- Fin24

Do you have a pressing financial question? Post it on our Money Clinic section and we will get an expert to answer your query.

Disclaimer: Fin24 cannot be held liable for any investment decisions made based on the advice given by independent financial service providers.

Under the ECT Act and to the fullest extent possible under the applicable law, Fin24 disclaims all responsibility or liability for any damages whatsoever resulting from the use of this site in any manner.

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