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Answer for Legal Action

Hi there, 

Thank you for your question. 

In terms of section 86(2) of the Act an application for debt review may not be made and does not apply to a credit agreement where the credit provider, at the time of the application for the debt review, has already taken legal steps as contemplated in section 129 to enforce that agreement. 

This means that in the event that a summons has been issued and served before the application form was signed by the consumer, that specific credit agreement must be excluded from the debt review. 

However. There is a possibility that it can be included in the debt review with permission from the creditor or by order of the court. Your debt counsellor will approach the creditor and negotiate the possible inclusion of their credit agreement. In the end it will be the decision of the creditor to be included in the debt review or not.

Alternatively, you must be present at the court hearing for which the summons was issued. During that court hearing you can explain to the judge that you have applied for debt review, that the instalment you are paying is more than the original instalment with extra to catch up the arrears. You can mention that you deem that to be very reasonable, and that the bank would be unreasonable should they continue with sale in execution. You can ask the court to declare you over-indebted and to refer your case to a debt counsellor, in this case your existing DC. The court can stop them from taking your house, and force them to include it in debt review. 

Hope this information was helpful.