Debt: Legally cancelling a debt over 3 years old

[Citizen X]

For the sake of brevit and ease of reference, I will reintroduce this topic at 1 thread as opposed to 2 threads! The following link is where the complete work will be presented in stages:
http://www.theforumsa.co.za/forums/s...age2?highlight=

[Citizen X]

Challenging credit bureau listings in a lawful manner

A detailed explanation with a supporting PDF doc can be found at:

http://www.theforumsa.co.za/forums/showthread.php/11657-Debt-How-to-claim-prescription-in-practice-and-how-to-enter-a-special-plea

[TarynDitt]

Hi All

Thank goodness for Google!
U all seem to be in the know, and I need help.
We (hubby and I) went under debt review Dec 2008. 1 year later Nedbank auctioned our property (original debt R350K) off for R49K.
We made calls to nedbank requesting they contact us to make payment arrangements for the balance under debt review. We never heard from them again. On review of our credit profiles we noted that nedbank had written off this debt (R321k) this was dated Oct 2010- almost a year after the property was auctioned. We had defaults against our names which have lasted 2 years (they are due to have come off 31/10/2012). Today 1/11/2012 we received a legal letter in the post advising us that this company representing Nedbank will be taking legal action against us for 322K. And they will allow us 5 years to pay.

Do have have any legal standing here- or do I pay?

[TarynDitt]

Hi Vanash-

Please can you also advise on the following. If the debt (bond) has been written off. Can they come back after 3 years and now take legal action against us? We have had a default against our names for the last two years, what is the difference between that and a default judgement (the legal letter we received states the nedbank was already put a default judgement against our names- what's the difference?) Can they put one against our name and the later add a judgement?

[Citizen X]

Hi All

Thank goodness for Google!
U all seem to be in the know, and I need help.
We (hubby and I) went under debt review Dec 2008. 1 year later Nedbank auctioned our property (original debt R350K) off for R49K.
We made calls to nedbank requesting they contact us to make payment arrangements for the balance under debt review. We never heard from them again. On review of our credit profiles we noted that nedbank had written off this debt (R321k) this was dated Oct 2010- almost a year after the property was auctioned. We had defaults against our names which have lasted 2 years (they are due to have come off 31/10/2012). Today 1/11/2012 we received a legal letter in the post advising us that this company representing Nedbank will be taking legal action against us for 322K. And they will allow us 5 years to pay.

Do have have any legal standing here- or do I pay?

Hi Tyryn,
1. You raise some interesting questions of law! I will provide you with my opinion based on the information which you have already provided here;
2. ‘Bad debt written off,’ does not necessarily mean that the creditor has abandoned their claim to such a debt. It simply means that in their accounting books they have written off the debt pending legal action and/or legitimate debt collecting methods and techniques;
3. Not all debts become eligible for extinctive prescription after 3 years has elapsed from the date of the last payment. A bond debt prescribes in 30 years(Thirty years). This is what the 1969 Act states on prescription periods:-
“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 an Act of Parliament provides otherwise, three years in respect of any
other debt.”
4. One must takecognisance of the monetary jurisdiction of the courts i.e. Magistrate court R100 000, Regional court R300 000 and High Court – unlimited.
5. Since, based on what you saying, R50 000 was already obtained by whatever means, in my opinion, they will claim the balance from the regional magistrates court;
6. Default judgement is applied for in two instances: 1 When a defendant fails to enter a notice of intention to defend with the prescribed time or, 2: Enter a notice of intention to defend but then fails to file a plea within the prescribed period
7. The only lawful way to remove a default judgement(you cannot appeal, appeal is reserved for a certain period of time after the judgement was granted, which, again, based on what you say, elapsed a very long time ago; is by way of rescission of judgement, in short, you pay the judgement debt in full and you obtain consent from the creditor for rescission of judgement, you will then have to instruct an attorney to have the actual judgment rescinded;
8. If you cannot afford litigation, approach the Law Clinic of your nearest University, they will conduct a means test i.e. based on what you earn. You will have to contact them directly for more details!!

[TarynDitt]

I want to thank you for you time and efforts. I have pulled the recorded calls to Nedbank and based on the discussions on those calls- I have request we handle the matter with out the arroneys who sent me the letter, as I was never informed of Nedbanks request to them. I have request an extended period (longer than 5 years) to allow for payment. They can't expect 6K+ a month is I cannt afford that. I am hoping they come to the party on this.

[Amelia1000]

Hi Vanash,

I am hoping you can assist:

I lived and worked in Dubai for nearly 2 years from 2007 - 2009, however in 2009 life got more difficult as the economic meltdown continued and I decided to leave the UAE and return to South Africa. I returned to South Africa in November 2009 leaving behind unpaid credit cards with two banks. I have since received numerous calls from multiple agencies asking me to repay my debts but have only responded to one agency via email about a year ago telling him that although i want to pay the money back I cannot afford such large monthly installments due to my current financial position, they were not willing to compromise. 3 years have gone by - Would prescription apply in this case?

Amelia

[Citizen X]

Hi Vanash,

I am hoping you can assist:

I lived and worked in Dubai for nearly 2 years from 2007 - 2009, however in 2009 life got more difficult as the economic meltdown continued and I decided to leave the UAE and return to South Africa. I returned to South Africa in November 2009 leaving behind unpaid credit cards with two banks. I have since received numerous calls from multiple agencies asking me to repay my debts but have only responded to one agency via email about a year ago telling him that although i want to pay the money back I cannot afford such large monthly installments due to my current financial position, they were not willing to compromise. 3 years have gone by - Would prescription apply in this case?

Amelia

Good morning Amelia,
I have sent you a PM with a more detailed response and possible resolution.
1. 2010, 2011 and 2012 make a full three years, so , yes, based upon the information you have provided extinctive prescription will apply for all those debts except the one that you have acknowledged debt on;
2. Stay Prescription[ 2007, 2008 & 2009] actually work to your detriment as years , time spent abroad is excluded from the 3 year prescription period, however, it doesn’t appear to affect you anyway, as despite this, 3 full years have elapsed. On this note, in my opinion you not obliged to assist a debt collector to prove their case against you i.e. actually help them by volunteering detrimental information to prove their case against you;
3. If you’ve already been served a summons for any of this old debt, not to worry, you have a valid defence, you may successfully raise the defence of prescription by way of special plea, this is designed to destroy the plaintiff’s entire case!

[Justloadit]

Just a point of note here.
The debt was accrued in another country, and therefor the prescription mentioned here is for debts accrued only in South Africa, and does not include other countries.
Whilst you may have a defence living in South Africa, be wary when traveling that you do not step into the UAE or other collaborating countries, as you may be arrested for the outstanding debt accrued in those countries if a warrant has been made for your arrest. Generally any crime/offense/ debt performed in a respective country while your are there will fall under that respective country's laws.

[Citizen X]

Just a point of note here.
The debt was accrued in another country, and therefor the prescription mentioned here is for debts accrued only in South Africa, and does not include other countries.
Whilst you may have a defence living in South Africa, be wary when traveling that you do not step into the UAE or other collaborating countries, as you may be arrested for the outstanding debt accrued in those countries if a warrant has been made for your arrest. Generally any crime/offense/ debt performed in a respective country while your are there will fall under that respective country's laws.

A very good afternoon to you Justloadit,

Amelia is actually talking about debts she left behind in SA i.e. she decided that for whatever reason she wanted to go to Dubia, live and work there. She was away ffrom 2007 to 2009. Upon her return to SA, she discovered that there were and are still outstanding debts for which the creditors(SA creditors) are now demanding payment.
In terms of the Prescrioption Act 68 of 1969 the time that she was abroad is of relevance in so far as this time period is excluded from the 3 year time period calculation. Fortunately for her though, 3 full years has nontheless elapsed despite 2007, 2008 and 2009 i.e. what elapsed is 2010, 2011 and 2012

[Citizen X]

For the sake of brevit and ease of reference, I will reintroduce this topic at 1 thread as opposed to 2 threads! The following link is where the complete work will be presented in stages:
http://www.theforumsa.co.za/forums/s...age2?highlight=

Challenging credit bureau listings in a lawful manner

A detailed explanation with a supporting PDF doc can be found at:
http://www.theforumsa.co.za/forums/s...a-special-plea

[Citizen X]

Research on extinctive prescription will be an on-going task. Please continue to send your completed questionnaires to
vanash.naick@gmail.com

[IMHO]

Vanash

Sorry for not reading the whole thread. I will if you instruct me to do so, but I just want to give you a quick background on my problem, maybe it has nothing to do with this thread.

I have a small shop in Klerksdorp at home from where I sell ink cartridges and do refills. It is registered as a cc. Some 6 years ago, I closed my only other branch in Potchefstroom, as the premises was sold and turned into flats. Business was bad and I decided not to move to new premises and closed the branch totally, only carrying on in Klerksdorp. I had an account with Telkom, which I gave notice on and closed. That account was under my cc name, but for that branch, separate account. Some time later, I do not recall how long after the event, I got a call from Telkom saying I did not pay my last account. I argued I did and I never heard of it again. Today, more than 5 years later, I get a call from MMM Capital, informing me that I have 7 days to pay the account plus costs and interest. I told the lady I closed that shop years ago and that I can not off hand remember what the story was, but that I am certain I did close and pay the account. I gave her my e-mail address and requested her to send me details so I can look at the case. She agreed and that was the end of the (recorded) conversation. Next thing I get a summons by e-mail demanding the payment and no details of what it is about, only a Telkom ref number.

I am in the habit of destroying all documents older than 5 years, so it is very difficult if not impossible for me now to prove I do not owe Telkom anything. I am also not sure of any dates relating to this, except that I closed the shop somewhere in 2007. Under what does this fall and how do I react to this summons out of the blue?

[Darkangelyaya]

Vanash, this is just a note to thank you publically for all the work that you have done, and are still doing, especially with reference to this thread.
You are a man who walks his talk, and I have great respect for that.
I salute you!

[Citizen X]

A very good evening to you IMHO

Sorry for not reading the whole thread. I will if you instruct me to do so, but I just want to give you a quick background on my problem, maybe it has nothing to do with this thread.

I both humble and approachable and would never patronize you by telling you to read the entire thread especially since your questions are very specific and are in the public interest!(I’ve got an attitude problem, but it’s just a little attitude problem!)

A Telkom debt falls under the 3 year prescription period i.e. section 11(d) of the Prescription Act 68 of 1969. This means that the law has given Telkom 3 full years from the date that the debt became due and payable to sue out summons failing which the debt prescribes. This is not a judgment debt i.e. judgment has not yet been granted against you, you have not acknowledged debt and more than 3 years has elapsed since the date of your last payment. So based upon the information that you provide this debt is prescribed! Go to this link:

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

, use the covering letter and prescription claim letter. The covering letter goes into your email body, the subject, your id number, the reference number and ‘extinctive prescription claim’
Modify the prescription claim letter with your personal details, ensure that you go through the entire letter, use this as an email attachment. Then email it to the individual who emailed you and copy Pinky the ceo of Telkom, this is her email address(Got it from public sources!)moholint@telkom.co.za

Next thing I get a summons by e-mail demanding the payment and no details of what it is about, only a Telkom ref number

Okay, at present in terms of the amended magistrates court rules summons may be sent via email where both parties consent in writing to the same. I doubt very much though that you have received a summons, I suspect that you have received a final demand letter(Can you clarify)


An extinctive prescription claim is essentially a means of informing the creditor that there’s really nothing further that they can do successfully legally and that should they proceed to court, your plea on merits and special plea will destroy their entire course of action. Rationale: Why still go to court if the debtor has now informed you in no uncertain terms that you have no course of action, that even if they go to court it will be a waste of their time as your special plea will destroy their entire action.

The documents you will require are included at this link, from what I deduce you just need two of the documents that are there as attachments. Download them, modify and serve via email for now and then registered mail, don’t wait to do it via registered mail, go the email route tomorrow and keep us briefed..