Debt: Legally cancelling a debt over 3 years old

[Dave A]

My concern is that debt review application. It might well be deemed an acknowledgement of debt as it must have been included in a list of creditors given to the debt counsellor. Probably worth pointing out that even if so interpreted, prescription becomes available on 22 April 2013 - not that far away.

The other aspect with this situation is in terms of in duplum, the sum of interest and collection costs raised may not exceed the quantum of the capital amount due at the time of default. More on in duplum here if it proves to be a relevant issue for you.

[kent]

Hi Dave

Thanks for the feedback.

I spoke to my wife again and she said that all contact she had with the debt review company was when she provided id numbers. No furher contact was made (i.e no documents was signed, no payment, no calls etc )

Can this still be viewed as a valid debt administrative application?

Also, Was the debt collector legaly able to view and access my credit history, without my impilicit consent?

And why does one credit bureau remove the listing and the others not?


Regards

[Dave A]

Kent, I gently suggest some bridges should only be crossed when you arrive at them. Based on current form, not much is going to happen between now and 22nd April when the issue of whether or not the debt review application could be deemed an AOD becomes moot.

The only reason I raised it at all is to indicate you might be in a more assured position to press for closure after 22nd April. Why test the line when you don't have to.

[Citizen X]

Hi Dave

Thanks for the feedback.

I spoke to my wife again and she said that all contact she had with the debt review company was when she provided id numbers. No furher contact was made (i.e no documents was signed, no payment, no calls etc )

Can this still be viewed as a valid debt administrative application?

Also, Was the debt collector legaly able to view and access my credit history, without my impilicit consent?

And why does one credit bureau remove the listing and the others not?


Regards

The debt review argument from the creditor's perspective normally goes like this, we couldn't act on collecting the debt becuase you were under debt review, however, the onus is on the creditor is give notice to terminate debt review when payment is not received. Indeed, there are a few areas that need some arguing around and there is some risk but you do have a good case based on extinctive prescription...

[Gummy1]

hi, I would like to know about school fees if that also falls under the 3 year? According to one debt collector it does not and you stay liable for the rest of your life.

[Citizen X]

hi, I would like to know about school fees if that also falls under the 3 year? According to one debt collector it does not and you stay liable for the rest of your life.

A very good afternoon to you Gummy1,

School fees are not ‘taxation, neither are they a debt owed to the State in respect of any share of the profits, royalties or any similar consideration payable in respect of the right to mine minerals or other substances; nor are they debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor.


As far as I’m concern the three year prescription period is applicable..

Might I suggest that you follow this link for more detailed information:

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

[Citizen X]

Frequently asked question(In a scenario):

I have just received a summons, this after having received a final letter of demand. The summons calls upon me to either appearance an appearance or consent to judgment . This matter related to a prescribed debt, a debt which is order than three(3) years, calculated as such from the date of the last payment. For whatever reason you ignored the demand letter, but summons has just been served, you have a deadline within which to file certain documents(pleadings).

You can do one of three things:

1. Defend your-self on the matter by entering a notice of intention to defend, drafting a plea on merits as well as a special plea of prescription in the prescribed manner. This entails serving these documents to both the plaintiff and the clerk of courts. With this pleading(plea on merits and special plea of prescription), your pleading has the intense power of destroying the entire action!(If you just ignore this, you give the creditor an opportunity to obtain default judgment upon yourself
2. Instruct an attorney either privately recruited, at a University Law Clinic or at the Legal Aid Board to enter an appearance, plea, and special plea on your behalf;
3. If you don’t want to go this route but are really serious about your matter, then, you can simply instruct an attorney to specifically draw up your pleadings(both plea on merits and special plea of prescription), you then only have to serve it on the plaintiff and clerk of courts;
4. Once you get a ‘notice of set down(date of trial),’even though in the vast majority of cases the plaintiff withdraws immediately upon seeing your pleadings!!!! So you save this way

Quantitative research Extinctive prescription invite:

If you care to take part in a survey, please send a blank email to vanash.naick@gmail.com

[Citizen X]

LegalWise assists you with drafting a letter in which prescription is claimed. So, if you have a LegalWise policy, it will prove to be very beneficial to you with matters regarding prescription
“How can LegalWise assist you?
LegalWise can assist you with the following:
· write a letter to your creditor stating that prescription has lapsed, been delayed or interrupted; and
· calculate your prescription period for you.”[1]

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[1] LegalWise: http://www.legalwise.co.za/index.php?cID=170. Accessed 20 January 2014

[Fouchee]

Hi guys
new on the forum , so please excuse the repeated question a year after the last post!. I had to close down my business in 2008 and subsequently lost my house/car etc in the process as well. During this time I was banking with ABSA and they collected all outstanding monies from the sale of my house at the time and then they closed all my accounts with them. We have not done any business (me and ABSA) since then. Out of the blue a week ago I got a call from MBD attorneys "acting" on their client"s (ABSA) behalf demanding an outstanding amount of R38k. This is 6 years after I stopped doing business with ABSA and during this period I did not receive ANY correspondence from ABSA.
Do I walk the "prescribed" route with confidence in this case?

[Citizen X]

Hi guys
new on the forum , so please excuse the repeated question a year after the last post!. I had to close down my business in 2008 and subsequently lost my house/car etc in the process as well. During this time I was banking with ABSA and they collected all outstanding monies from the sale of my house at the time and then they closed all my accounts with them. We have not done any business (me and ABSA) since then. Out of the blue a week ago I got a call from MBD attorneys "acting" on their client"s (ABSA) behalf demanding an outstanding amount of R38k. This is 6 years after I stopped doing business with ABSA and during this period I did not receive ANY correspondence from ABSA.
Do I walk the "prescribed" route with confidence in this case?

Hi Fouchee,

Based on the information you provide, you may with confidence go the extinctive prescription route. Remember, only judgment debt, aknowledgement of dent or any actual payments made in a three year period from the date of your last payment will destroy your extinctive prescription claim...