Durban - A Reservoir Hills family turned to the Durban High Court on Friday for an urgent interdict to stop Absa Bank from auctioning their home after they accidentally short-paid their April instalment by R260.
Akesh and Thilganogie Jugniek rectified their shortfall immediately after being notified of it at the beginning of May and, despite continuing to make monthly payments thereafter, were informed on September 21 that their property would be auctioned.
In his affidavit, Akesh Jugniek said the couple bought their home in 2007. The purchase price was R440 000. They paid the transfer fees and deposit using money they had saved. The mortgage amount borrowed from Absa was R416 500.
At this time, both Jugniek and his wife were employed and able to afford the repayments. “However, during May 2011, I lost my job. During July 2011 I applied for debt review and, in terms of the debt review process, I had to pay an amount of R7 000 per month towards the settlement of my debts.”
Optimistic that he would soon find employment, Jugniek agreed to the repayment amount, but when he could not find work, he found himself unable to pay and the debt review process was terminated.
Almost a year later, in March 2012, Jugniek, a technician, gained employment and informed the bank’s attorneys of his ability to continue payments. An agreement was reached for the couple to repay R3 858 a month.
One of the documents the Jugnieks signed said that should they “fail to make one or any of the payments timeously”, the attorneys would lodge Consent to Judgment “without further notice” and obtain judgment against them. It also said that should judgment be obtained, “execution against your primary residence will ordinarily follow and will lead to your eviction from such residence”.
The couple did not take copies of the documents with them.
“[We] were under the bona fide but mistaken belief that the monthly instalment payable to the respondent was… R3 600… I made the payment into the loan account,” Jugniek said in his affidavit.
After he was phoned by the attorney’s secretary and informed he had shortpaid by R260, Jugniek said he immediately paid the outstanding amount. “I then telephoned [the secretary] and informed her that I had remedied my error. I presumed that the arrangements that [we] had made with the respondent would continue. However, I was informed that the respondent viewed my conduct a breach of our undertaking and that they were proceeding to sell our property.”
Jugniek approached his attorney, Umesh Jivan, who tried to communicate with the attorneys. The couple also approached the bank, to no avail. They continued to make full repayments each month, but were informed on September 21, 2012 that their home would be auctioned on October 3, 2012.
On Friday, September 28, after a week of trying to stop the auction, Jugniek sought an urgent interdict through his attorney to stop it. This was granted. If the bank opposes the order, it needs to make representation to the court on November 2, 2012.
Jivan told The Mercury that he was shocked the bank had proceeded with the auction even after the R260 shortfall was paid, as the repossession and auction process could cost thousands of rands.