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Thread: Unsure if Prescribed debt or not

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    Question Unsure if Prescribed debt or not

    Hi,

    I had a credit card in 2008, last used and paid for in early 2009. I had no idea that there were fraudulent transactions taking place on it thereafter. 2 weeks ago i get a call from an Attorney's office working for the bank stating that i owe R32k on this credit card (Capital R8000, the remainder interest and fees). I was mortified. Upon investigating, i found these transactions and last payment date Feb 2009. I have never acknowledged debt either. However i noticed a fee for summons, sheriff, and judgement on the attorneys statement, but never received anything stating this nor have i seen anything on my credit reports.
    I dont know if really these steps were taken since this attorney charges for EVERYTHING, even when i call them, or they send me a statement. So i dont know if the legal charges are valid.

    Do you think i have a case for prescribed debt?

    I have read a few articles of summons lapsing after a year if no legal proceedings taking place, and judgements being set aside if not used, but obviously this all depends on the current status of the legal proceedings. How do i find out since the attorney is not very helpful in giving me the legal details (eg. copies of summons or judgements).

    Ultimately, what do i do?

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    From the Prescription Act

    11 Periods of prescription of debts
    The periods of prescription of debts shall be the following:
    (a) thirty years in respect of-
    (i) any debt secured by mortgage bond;
    (ii) any judgment debt;
    (iii) any debt in respect of any taxation imposed or levied by or under any law;
    (iv) any 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;
    (b) fifteen years in respect of any 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, unless a
    longer period applies in respect of the debt in question in terms of paragraph (a);
    (c) six years in respect of a debt arising from a bill of exchange or other negotiable
    instrument or from a notarial contract, unless a longer period applies in respect of
    the debt in question in terms of paragraph (a) or (b);
    (d) save where
    So, it is 6 years.
    Have you acknowledged the debt ? If not, DON'T and demand that all communications be in writing. Do not speak to them over the phone.

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    Diamond Member Vanash Naick's Avatar
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    Quote Originally Posted by Bhash View Post
    Hi,

    I had a credit card in 2008, last used and paid for in early 2009. I had no idea that there were fraudulent transactions taking place on it thereafter. 2 weeks ago i get a call from an Attorney's office working for the bank stating that i owe R32k on this credit card (Capital R8000, the remainder interest and fees). I was mortified. Upon investigating, i found these transactions and last payment date Feb 2009. I have never acknowledged debt either. However i noticed a fee for summons, sheriff, and judgement on the attorneys statement, but never received anything stating this nor have i seen anything on my credit reports.
    I dont know if really these steps were taken since this attorney charges for EVERYTHING, even when i call them, or they send me a statement. So i dont know if the legal charges are valid.

    Do you think i have a case for prescribed debt?

    I have read a few articles of summons lapsing after a year if no legal proceedings taking place, and judgements being set aside if not used, but obviously this all depends on the current status of the legal proceedings. How do i find out since the attorney is not very helpful in giving me the legal details (eg. copies of summons or judgements).

    Ultimately, what do i do?
    A very good evening to you Bash,

    Welcome to TFSA

    1. If it's a judgment debt, thinking along the lines of extinctive prescription won't assist as this type of debt prescribes in 30 years and is therefore also collectable for 30 years!
    2. You can ask the attorney for the case number and from which court the judgment was granted;
    3. If it proves to be a judgment debt, there's two routes you can go 1: Rescission or 2: Review
    Have a look at this thread for more information:

    http://www.theforumsa.co.za/forums/s...plea?highlight=
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Platinum Member sterne.law@gmail.com's Avatar
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    The 6 years is with reference to bills of exchange, notarial contracts and negotiables. These are specific instruments of payment, and not debt in general.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Unpaid University Tuition Fees

    I got a call this afternoon from an attorney that was calling on behalf of a state university I attended 10 years ago. They want me to make arrangements to pay the tuition fees debt that I have already attempted to settle 7 years ago to no avail because of the heavy interest, legal fees and postal charges. She infomed me that I had to make an arrangement to settle this debt, if I failed to do so they would have no choice but to served me with a summons. I informed her that I am currently unemployed so I will be unable to pay them. She told me that I should get a letter from the department of labour as official proof of my unemployment status. What I need to know is does this constitute a prescribed debt and if so how should I proceed to settle this once and for all.

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    From the Prescription Act

    14 Interruption of prescription by acknowledgement of liability
    (1) The running of prescription shall be interrupted by an express or tacit
    acknowledgement
    of liability by the debtor.

    (2) If the running of prescription is interrupted as contemplated in subsection (1),
    prescription shall commence to run afresh from the day on which the interruption takes place or,
    if at the time of the interruption or at any time thereafter the parties postpone the due date of the
    debt from the date upon which the debt again becomes due.
    So, in your dealings with the attorneys, if you have have not denied the debt expressly, you have acknowledged the debt and the prescription period starts afresh.

    Making payment arrangements: (if it gets to that stage)

    Offer them R10 per month, and stick to it. They will probably go mad and threaten you but just stick to your offer. They have no choice because you are offering to pay the debt and if they refuse the offer the debt is settled.

    Also, do not communicate with them by phone, demand that all communications be in writing. This will help to stop them to psychological tactics to intimidate you.

    Keep us updated.

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    Quote Originally Posted by sterne.law@gmail.com View Post
    The 6 years is with reference to bills of exchange, notarial contracts and negotiables. These are specific instruments of payment, and not debt in general.
    A negotiable instrument is a check, promissory note, bill of exchange, security or any document representing money payable which can be transferred to another by handing it over (delivery) and/or endorsing it (signing one's name on the back either with no instructions or directing it to another).

    Promissory Notes
    Quite simply, a promissory note is a promise to pay or IOU. It is a formal commitment (also known as a loan agreement or contract) between two parties that is usually necessary when money is borrowed and lent between them.

    http://definitions.uslegal.com/p/promissory-notes/




    A promissory note is a document, signed by the person making the document, containing an unconditional promise to pay a fixed sum of money to a named person, to the order of a named person, or to the bearer (the person who is in physical possession) of the document. Loans are typically formalized in promissory notes, and since they often provide for payments over time, they function to provide credit to the borrower who is the maker of the note.

    http://www.translegal.com/lets/negotiable-instruments-2

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    Platinum Member sterne.law@gmail.com's Avatar
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    Thank you for these definitions, albeit from an american source.
    It is not disputed that a promissiory note, bill of exchange is a form of debt, which seems to be what you are attempting to point out and seemingly take delight in pointing out.
    What is more important, is that your statement of fact, that 6 years is the prescription period, seems somewhat askew. As I understand it the debt arises from a credit card, which is, as far as I understand South African law, does not constitute, a promissiory note or bill of exchange.
    Kindly see the following http://www.saflii.org/za/cases/ZAGPHC/2009/26.html which is a clear judgement setting out that prescription is 3 years.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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