Debt review and Termination

[Monita]

Hello everyone,

I'm breaking point, in Nov 2011 I went under debt review because I made ​​very bad financial decisions. I have two loans, and credit card debt and bought a car.

I gave everything for debt review company and payed sin Nov every month my monthly installment. In April I received a termination letter from my bank that financed my car I would not like to name names. I have to inform them that I am under debt review but they just refused to accept any reason and kept saying the Debtreview company in the wrong and they do not have time in the 60 days has applied for a court date. Nov one of the Bank's people visit and told me if I give my car if I pay the outstanding balances if they were going to sue me. However, I told them that I did pay and showed them all the statements and how can they tell me it's now a year later and now they want to take my vehicle. The best I paid exactly the same payments under debt review than what I would pay on my own, the even made the payment more and did not tell me that his now the bank. Now I have a court date and it is the end of Feb but the bank refused because there say did I not pay Jan and Feb 2012 but I did.

What should I do I have sleepless nights they would not give the settlement amount and the papers in Legal. What should I do?The Debtreview company has sent 100 of emails,papers and phonecalls but still no joy. What can happen in the court hearing?

Please can you give me some info.

[Dave A]

Ideally you should not have to be defending this yourself, but normally when people are under debt administration they don't have funds available to hire a lawyer to defend them.

As a first step, I suggest you ask for the following from your debt counsellor:

• The details and registration number of your debt counsellor.
• The order of court (debt administration order) that the debt counsellor should have obtained for your debt rearrangement.
• Statements from the payment distribution agency reflecting all payments you have made and how they have been applied.

Make a post once you have these, or a post if you have any trouble getting these from your debt counsellor.

[Monita]

Hi

I have the details and the registration number of my debt counsellor.
I have a case nr,court date, Issued Notice of Montion and a Founding Affidavit with Anex.
I have up to date statements from Nov 2011 to Jan 2013 with the payment distribution agency reflecting all payments.

The banks arguments is that the Court date or order was not made in 60 days and that as I said accourding to them did not pay for Jan and Feb with I did.

[Dave A]

The banks arguments is that the Court date or order was not made in 60 days

That's the bit that really needs a lawyer to argue the point.

Now I'm not a lawyer, and I can't point to any useful precedents, and what follows needs a lot of dressing up to make a formal plea, but I believe an argument in defence that goes something along these lines should be tested:

1. A debt adminsitration order has been given by a competent court, and the debt for which the plaintiff seeks judgement is included in this adminstration order.
2. The plaintiff argues that he is not bound by the administration order as the order was not obtained within 60 days after the debtor applied for debt counselling.
3. The defence argues that the plaintiff's argument be found not valid as a result of the following (and you're going to have to choose which applies):

3.a. The plaintiff was notified of the debtor's application for an administration order, and failed to object to the granting of that order and the plaintiff's inclusion therein to the court hearing the application.
3.b. The plaintiff only commenced this legal action after the granting of the debt administration order.
3.c. Notwithstanding the delay in the issuing of the debt administration order beyond the 60 days provided for by the NCA (reasons for the delay would be useful), a competent court saw fit to grant the order, and the order is binding on the parties.

and that as I said accourding to them did not pay for Jan and Feb with I did.

That is simply a matter of presenting the facts of the matter - which should be clarified by the PDA's statement of account. If you made the payments timeously and the PDA failed to pay over the disbursements timeously, I suggest the PDA has a case to answer. Unfortunately that would be up to you to bring against the PDA.

[Monita]

Thanx Dave,

I am going to wait for the court hearing on the 22 Feb all the creditors and the Debtreview company are going to be their. I hope that the court will be on my side and that the bank will make them put me under debtreview. I'm just scared that the court will give the bank the green light because it was not done in 60 days but the Debtreview company and an lawyer told me that the court are so full that it is difficult to get a court that in 60 days and it was i think overuled in the FirstRand Bank v Colet case.

I feel like a need a law degree for this and I really tired of stressing. When I went under debtreview I really thought thinks would get better but now almost a year and a half later I'm still batteling with the creditors well only the bank were my car is.

I really dont know what other options I have but to either give back my car or buying them myself because in fact I pay the some payment to Debtreview company as I will privately.

Another question is what if I can in the futher buy my creditors how can I stop the Debtreview and how to I communicate with them. I think I made the wrong decision to go under debtreview.

[Citizen X]

Good afternoon Monita,

This is my opinion on this matter, just an opinion though

At the risk of over simplifying the legal issues and processes involved here, I think, it’s best to firstly asking 5 questions before I get to the crisp issue and what it is that is actually currently happening here:
What is debt review? What is Administration? What is the difference between the 2? Where does this 60 days mentioned come find reference here?

[QUOTEin Nov 2011 I went under debt review ][/QUOTE]

1. Debt review: Debt review is a process that gets underway either1: because a debtor realizing that his/her debts are unmanageable approaches a debt counselor to conduct an assessment of their dents and then make monthly payments to each creditor in behalf of the debtor. This is a situation where a debtor is over indebted, and, 2: When a creditor sends a debtor a final demand letter drawing their attention to the fact that the debtor is required to make payment or approach a debt counsellor failing which summons is sued out. The debt counselor serves as an intermediary between the creditor and debtors with specific regards to repayments made by the debt counsellor on behalf of the debtor and 3: The Court makes an order for debt review
Debt review is regulated by Section 76 of the National Creditor Act 34 of 2005(herein after to be referred to as NCA).
In November you realized that your debts were unmanageable and either on your own free will or as a result of a final demand letter you approached a debt counselor to rearrange your debts for payments in a manner that is affordable. Such payments were taking place timeously and you can prove this.
2. Administration:
Administration is a procedure that the debtor himself/herself initiates. This is not initiated by the creditor, this is initiated by the debtor where judgment has already been granted and the total amount owed is less than R50 000. An administrator will then be appointed to restructure the debts. The debtor brings an Administration order application by way of notice of motion (ex parte), supported by affidavit and upon proper notice to the creditor

So, the real question is can the creditor actually give notice to terminate debt review when the debt counselor has already referred the matter to a court? There is no definitive case that I can find that suggests that a creditor may not dfo this, however the court will consider each case on its merits and may rule that the debt counseling continue
Administration is regulated by section 74 of the Magistrates Court Act 32 of 1944(as amended) as well as section 48 of the Magistrates Court Rules.

Section 86(11) of the NCA reads as follows(ask yourself what is this part c and chapter!)
3. What is the difference between debt review and Administration? There are actually a few! The monetary value of a debt for Administration purposes must not be more than R50 000 whereas with debt review there is no limit to the monetary value of the debt. With debt review you cannot take a judgment debt to a debt counselor whereas with administration the court will only consider judgment debts. An administration order is governed by the Magistrates Court Act whereas debt review is governed by the NCA. With debt review the debtor usually appoints a debt counselor whereas with Administrator only the court can appoint an administrator who is usually an attorney. A court order is granted with Administration and there is no further negotiation with the creditor whereas with debt counselling there is negotiation with creditors, a court order may be applied for.

4. Where does this 60 days mentioned come find reference here?
[QUOTEthey do not have time in the 60 days has applied for a court date][/QUOTE] This one has got me confused!!
Section 86(10) of the NCA applies in a situation where a debtor is under debt review, but the creditor is not receiving payments and cannot act legally against the debtor unless a notice to terminate debt counseling is sent to the debtor, the counsellor and the NCA, this is where the 60 days come into play!
Section 86(10) reads as follows: ‘If a consumer is in default under a credit agreement that is being reviewed in terms of this section, the credit provider in respect of that credit agreement may give notice to terminate the review in the prescribed manner to (a) the consumer;(b) the debt counsellor; and(c) the National Credit Regulator, at any time at least 60 business days after the date on which the consumer applied for the debt
review.
Section 130 of the NCA provides that after a creditor has given this notice , that is 60 days have elapsed since non payment and the creditor has given notice to terminate the debt counselling the credit can then go to the court to enforce the credit agreement.
5. What it is that is actually currently happening here?
The credit provider has given notice to terminate dent counseling because of alleged non-payment and is going to court with the objective of getting the court to enforce the matter

11) If a credit provider who has given notice to terminate a review as contemplated in subsection

(10) proceeds to enforce that agreement in terms of Part C of Chapter 6, the Magistrate’s Court
hearing the matter may order that the debt review resume on any conditions the court considers
to be just in the circumstances

Your defence: Deny that payments were not made and put the applicant to the proof thereof, your statement serve as evidence.

[Monita]

Vanash

Thank you for the post.

I went under debtreview willingly out of my own in Nov 2011 after I came to reality that I will not be able to pay all my creditors.
I payed everything till I went under debtreview and from then on till know I paid my monthly payment with no problem and never behind.
I asked for statements each month to see were my money as gone. I have all the emails between the bank and the debtreview company and if I was the judge I will see that the bank made no attempt to help me or the debtreview they send the application on the 28 Nov 2011 no response then again in Jan 2012 no response , again in April after the letter of termination came with I dont understand because how can you terminate something if you claim you never sighned the papiers of the payment plan.
Then they send again a proposal in Aug,Sept,Oct and Nov and still the bank send me a formal Lawyer letter telling take taking action againts me, and the man of the bank came to see me. In the meantime they the bank lifted my monthly payment with out me or the debtreview company knowing about it from the orginal R2405 to R3200. Then after legal spoke to them they went down to R2204 a pay them R2029 a month. I can speak to anybody at the bank they simply telling me my stuff are at legal and it is because I didn't pay in Jan 2012 and Feb 2012!!!

I have sleepless night because it feels like they dont want to help and I feel the payment we made is very good even under debtreview.

[Monita]

Just a update I just recieved a phonecall from the Debtreview company and they said the Banks attorneys said to getting a "dagvaardiging" I will recieved in a days time according to them the Debtreview company never tried to make contact with them do you guys thing I should talk to a lawyer.

[Darkangelyaya]

Just a update I just recieved a phonecall from the Debtreview company and they said the Banks attorneys said to getting a "dagvaardiging" I will recieved in a days time according to them the Debtreview company never tried to make contact with them do you guys thing I should talk to a lawyer.

Something is very wrong here.
Check out the thread 'Debt Councilling gone horribly wrong' elsewhere on the forum.
Yeah, get a lawyer. Right now.

[Monita]

Just a quick update, I did this afternoon went through all my bank statements of the car I've never really looked at it before.. On the one statement thats on Jan 2012 a miscellaneous items for R22 256 were but on I have no idea what it is for on Nov 2012's statement shows that my term of 72 months chanced 92 months I phoned the bank and ask what were the R22 256 because my term extended and lower my monthly installment the lady told me. Now how does one explain that if they they had not approved debt review and proceed with legal action. I also signed nowhere or even asked them to renew my term. I do not know if I should laugh or cry does this show that they approve the debt review i dont know who is right and who is wrong. I also looked at my bankstatements and the only time I didn't buy was the first 3 months after I joined Debt Review and from then on you can see on the car statements it clearly shows the payments made.

[Darkangelyaya]

If you are only in danger of losing your vehicle, then phone the bank and make arrangements. Keep notes of everything! It seems like your car is still fairly new, so do your best to keep it. NB! Even if you hand your car back willingly, it still counts as a repossession, and you will still owe the bank.
I have been where you are - I know it's difficult. But you need to get your head straight and take charge right now. I would not pay the debt councillors another cent. They are mostly a bunch of thieves.
Save the most important asset first. Normally that is your car, because you need it to get to work.
Pay your creditors exactly as per the distribution list, with the same amounts, but directly. Keep proof of every single thing.
NB! Fetch your whole file from the thieves and contact the important creditors yourself (a tv licence or clothing account is NOT a necessity. Car, house, food, electricity, those are. Get written agreements from everyone!
Vanash has done excellent work in the prescribed debt area (expired debt).
When you are calmer, browse that thread for info.
Good luck, and stay strong.

[Dave A]

I would not pay the debt councillors another cent.

I suggest this is advice that should be considered with very careful caution. Not everyone possesses the strong characteristics required to succeed going down this path. (In fact I'd gently suggest the % of people who can pull it off on their own is very much a minority).

It does have some merit though - going down the debt counselling route can add significant costs, and it certainly does impact on your autonomy.

[Monita]

Thank you for all you advice.

I check the company as a number so they are legit, there are a few report and only good report 3 bad ones on Hello Peter. I spoke to all the other creditors they all get the money and have no problem only the bank were my car are finance even my local branch manager of that bank can't understand why they are doing this that is know the bank because they receive payments and everything are on black and white.

I still cant understand why my term went up from 72 mnths to 92 mnths. I want to phone them myself but I know that the debtreview company will not like that at all. They dont even know that I spoke to the branch manager myself.
I dont know if I should wait the 9 days till we go to court or what up to know nobody as handed me any formal sueing letters ( dagvaardigings).

[Justloadit]

I can understand why the payment period has been extended. If you are paying a lower amount, then it simply means that it will take more months to settle the original debt, because the interest is compounding on the unpaid portion.

[Darkangelyaya]

The bank can take back your car legally at ANY time if you are behind in any way. If you go to court, chances are 99% that the bank will win.
This is why I urge you again to come to an arrangement with them before court.
If it is ABSA, I have a good contact for you, but otherwise it means trouble.