The Sheriff's at your door with a court order and a warrant to attach your assets
A nightmare scenario that happens more often than you'd think. Our firm was recently approached by a business client who had received a panicked call from his wife at home. The Sheriff of the court was at their door with a court order and a warrant of execution, and was demanding entry to their home to attach assets. Why?
When a creditor gets a court order against you, they should notify you of that order and demand that you make payment immediately. But they are not technically required to give you that notice - they can simply send the sheriff. The Sheriff arrives to "attach" assets - meaning he'll write them up and give you a further week or two to make payment of the judgment debt to him. If you do not, he will then visit again to "remove" assets - meaning he'll seize them and take them into storage, to be sold on auction to raise funds to pay the judgment debt.
But how does this happen?
How does it happen that a creditor gets a judgment against you without you knowing about it? The most common scenario we see with our business clients is that their actual place of business is not the same as the one they declared when they registered the business on CIPC. When your creditor starts the legal process against you with a summons, they are entitled by the Court Rules to have the summons served on your CIPC-registered address. In the case of our client, it had upgraded to newer premises but never updated its business address on CIPC. Its creditor served the summons on the old address, and the client never received effective notice about it. A month later, when the client hadn't defended the summons, its creditor obtained default judgment and a writ of execution. Then, the creditor sent the Sheriff to the new address.
What do I do if the Sheriff is at my door?
1 - Cooperate with the Sheriff
Most importantly, keep calm and cooperate with the Sheriff. The Sheriff is an officer of the court and it is a crime to lie, obstruct the sheriff or prevent him from attaching and/or removing assets. But don't panic - the Sheriff is almost never authorised to attach and remove on the first visit, so you should have some time.
2 - Verify the Sheriff's accreditation an documentation
Without being confrontational with the Sheriff or Deputy, request confirmation of their credentials and registration with the Sheriff's Board. There are some scams perpretrated where criminals pose as the Sheriff to try seize unwitting people's goods. Second, verify that the Sheriff/Deputy has a properly issued and stamped Warrant of Execution, containing all the correct details. Contact us for assistance with this.
3 - Start the rescission process
There are usually two defences in law: technical, and merits. If your creditor has obtained judgment against you improperly, for example by serving on the wrong address and not providing you with due notice, you may have a technical defence allowing you to have the judgment rescinded (canceled). Similarly, if for example you never actually owed the alleged creditor anything, you may have a defence on the merits which would enable you to rescind the judgment.
In such a scenario, you may need to take two steps:
have the judgment rescinded (which does not stop the sheriff until the rescission is complete); and
obtain an urgent stay of execution (which DOES stop the sheriff while the rescission is being decided).
Our firm is experienced in all forms of litigation and commercial law services to our business clients. Contact us for assistance with rescissions and other litigation matters.
The above information is for illustrative purposes only and does not take into account your specific circumstances. It therefore does not constitute legal advice. Please contact us for comprehensive advice to address your circumstances. Under no circumstances should any person use the above information in an attempt to circumvent the provisions of legislation or contract, or to cause damage to any other person. Always ensure you and your company are in compliance with the law in all dealings. This information is accurate as of the date of publication.
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