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Thread: Debt: Legally cancelling a debt over 3 years old

  1. #101
    Diamond Member Citizen X's Avatar
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    A very good evening to you Carina,

    1. Your questions are in the public interest! Extinctive prescription is actually there to punish a creditor for not suing out summons within 3 years from the date that the debt became due and payable. To be safe it became due and payable by November 2008. I say this as you made no payments ever since. They could have done a trace alert on you at any time, your contact details are available on the credit bureaus which the either failed or neglected to do. Difficult to say which! They contacting you now, so they have your contact details;
    2. The following link has all the useable attachments that you will require for this task
    http://www.theforumsa.co.za/forums/s...age2?highlight=

    3. In practice you download 3 documents from the afore mentioned link 1: Covering letter 2: Prescription claim letter and 3; Affidavit( to prove that you have claimed prescription)
    4. The covering letter will find reference in the body of your email, subject : Their reference number, your id number and Extinctive prescription Claim(Modify the covering letter to your individual situation)
    5. The prescription claim letter will be your attachment(Modify the prescription claim letter to your individual situation especially creditor name, your details, go through the entire letter! For creditor state the debt collectors name and/or the creditor). The rationale is one can't be cretain if the debt has been sold so you state the creditor as XYX attorneys and/or MTN)
    6. Serve it initially via email, after service give it 2 working days before you follow up
    7. Please keep us posted
    Last edited by Citizen X; 28-Feb-13 at 09:37 PM.
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  3. #102
    Silver Member Darkangelyaya's Avatar
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    Hi Vanash, thanks for the answer.
    I think you misunderstood me, it's my peace of mind bothering me - as of this moment, no-one has contacted me for payment; therefore I just wanted to know whether it would be the best route for me to 'kick the hornet's nest'.
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    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by Darkangelyaya View Post
    Hi Vanash, thanks for the answer.
    I think you misunderstood me, it's my peace of mind bothering me - as of this moment, no-one has contacted me for payment; therefore I just wanted to know whether it would be the best route for me to 'kick the hornet's nest'.
    This is the ulimate problem statement! One doesn't know what an offensive such as an extinctive prescription claim may cause the creditor to do. What I mean by this is: One is now uncertain if this is a judgment debt! If not, you've got nothing to lose. You essentially asking for the legal certainty and closure that extinctive prescription is designed to provide. The decision is far easier to make when demands for payment are being received and you have a valid response to such demands such as debt is prescribed. All things being equal, If I were in your position, I'll still pursue this!
    Sometimes an offensive is the best defensive..(It's your call though)
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  6. #104
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    Quote Originally Posted by Vanash Naick View Post
    This is the ulimate problem statement! One doesn't know what an offensive such as an extinctive prescription claim may cause the creditor to do. What I mean by this is: One is now uncertain if this is a judgment debt! If not, you've got nothing to lose. You essentially asking for the legal certainty and closure that extinctive prescription is designed to provide. The decision is far easier to make when demands for payment are being received and you have a valid response to such demands such as debt is prescribed. All things being equal, If I were in your position, I'll still pursue this!
    Sometimes an offensive is the best defensive..(It's your call though)
    Surely if it was a judgment debt, it would be listed on the credit bureaus?
    ~Anything or anyone who does not bring you alive, is too small for you~ Carina
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  7. #105
    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by Darkangelyaya View Post
    Surely if it was a judgment debt, it would be listed on the credit bureaus?
    In my experience not in all cases! Sometimes a creditor failes for whatever reason to list it. When they do, they don't always list it on all credit bureaus! Some may list it on Transunion ITC, others XDS, other Experian an some all 3. Bear in mind that the listing stands for 5 years after which it is automatically expunged. It's increasingly difficult to tell. This is why you need to weigh things carefully and make the final call!
    Last edited by Citizen X; 01-Mar-13 at 11:25 AM.
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    [B]Please find the definition of prescription below: 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 a fresh 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. Arrangements were made on the account on the following dates: 30122006 730.00 PROMISE TO PAY 0101200706012007 730.00 PROMISE TO PAY 0801200728022007 360.00 PROMISE TO PAY 0203200712062007 400.00 PROMISE TO PAY 14062007 Kindly note that payments have been recorded on the following dates which interrupts the prescription claim. 13092012 03:30 T769 11092012 300.00 PAYMENT 04102012 02:57 T769 02102012 300.00 PAYMENT22022013 01:56 T769 20022013 400.00 PAYMENT what does this mean
    10. Extinction of debts by prescription.—(1) Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.
    (2) By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription.
    (3) Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.

    This basically means that you cannot claim a debt once it becomes prescribed.
    if i paid anything after three years is it in full and does prescription start over this law is 2 sided

  10. #107
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    My Note: I've tried to restructure the above post into something more readable. I can't guarantee the accuracy of my interpretation, but it makes more sense than what Patrick put up.

    Please find the definition of prescription below:

    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 a fresh 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.

    Arrangements were made on the account on the following dates:
    30122006 730.00 PROMISE TO PAY 01012007
    06012007 730.00 PROMISE TO PAY 08012007
    28022007 360.00 PROMISE TO PAY 02032007
    12062007 400.00 PROMISE TO PAY 14062007

    Kindly note that payments have been recorded on the following dates which interrupts the prescription claim.
    13092012 03:30 T769 11092012 300.00 PAYMENT
    04102012 02:57 T769 02102012 300.00 PAYMENT
    22022013 01:56 T769 20022013 400.00 PAYMENT

    what does this mean

    10. Extinction of debts by prescription.—(1) Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.
    (2) By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription.
    (3) Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.

    This basically means that you cannot claim a debt once it becomes prescribed.

    if i paid anything after three years is it in full and does prescription start over

    this law is 2 sided

  11. #108
    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by Dave A View Post
    My Note: I've tried to restructure the above post into something more readable. I can't guarantee the accuracy of my interpretation, but it makes more sense than what Patrick put up.

    Please find the definition of prescription below:

    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 a fresh 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.

    Arrangements were made on the account on the following dates:
    30122006 730.00 PROMISE TO PAY 01012007
    06012007 730.00 PROMISE TO PAY 08012007
    28022007 360.00 PROMISE TO PAY 02032007
    12062007 400.00 PROMISE TO PAY 14062007

    Kindly note that payments have been recorded on the following dates which interrupts the prescription claim.
    13092012 03:30 T769 11092012 300.00 PAYMENT
    04102012 02:57 T769 02102012 300.00 PAYMENT
    22022013 01:56 T769 20022013 400.00 PAYMENT

    what does this mean

    10. Extinction of debts by prescription.—(1) Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.
    (2) By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription.
    (3) Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.

    This basically means that you cannot claim a debt once it becomes prescribed.

    if i paid anything after three years is it in full and does prescription start over

    this law is 2 sided
    Good morning Boss,

    Yes, it does make more sense this way, in that I can now see clearly where Patrick’s problem lies.

    Good morning Patrick,

    I would firstly like to impress upon you that I understand your frustration! You feel as though you were robbed i.e. had it not been for certain payments, your debt would have been eligible for extinctive prescription!

    Allow me to explain as follows

    Section 10 sets the basis for extinctive prescription
    a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.



    There are different prescription periods. The vast majority of our debts prescribe in 3 years. This means that the law allows the creditor to sue out summons (judicial process) within 3 years from the date that the debt becomes due and payable. The debt becomes due and payable on the date which you fail to pay your debt. Prescription is actually there to punish a creditor for not suing out summons within the prescribed period. So should they sue out summons after this 3 year period, you may enter an appearance, file a plea on merits and a special plea of prescription which will completely destroy their action as their claim is prescribed in law. Why then claim extinctive prescription directly from the creditor? Simply because the creditor is not going to court to demand payment but is demanding payment directly from you, so you responding to the creditor by saying that the debt is now prescribed.

    The periods of prescription of debts shall be the followingsave where an Act of Parliament provides otherwise, three years in respect of any other debt



    Unless certain events interrupt prescription and cause prescription to run afresh namely actual payments and acknowledgement of debt


    The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.


    Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.



    In your individual case one need no longer to look at the acknowledgement of debt but rather your last payment which was on 22 February 2013. The creditor now has 3 years from this date 22 February 2013 to demand payment on the debt and/or sue out summons

    22022013 01:56 T769 20022013 400.00 PAYMENT



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    Hi Vanesh

    I took out loan in 2008/11/15 and due 2010/04/30, which from 09/05/2009 debits went unpaid as I was no longer working.I had no further correspondance with them and in 23/05/2012 send them a prescription letter claiming debt as preascribed, and asked that they send me statements to support my claim
    The debt however still appeared and I lodged a claim with Transunion, who after 20 days came back saying creditor has not responded and removed the listing.

    However, when I applied for credit recently, was told that one of my accounts is 9 months in arrears, checked XDS and experian, whi acknowledged that the listing is stll on my profile
    XDS investigated, but came back after 2 days saying the creditor rejects the debt has prescribed and said I was liaing with them within the 3 years.
    They concluded the case without asking for any proof of such communication and I was told the creditor's feedback was final

    I then send email asking for the proof and was told the following
    2010/04/06 - a call was attempted no response, on the same day it was established that the client has left the company,
    2010/04/22 - received a debt review application,
    2012/05/ 23 - A call was received from yourself enquiring about the account,
    2012/05/23 – another call was received from yourself requesting a settlement quotation, the document was sent to your current settlement amount

    So, within the 5 years the debt is listed, they made 1 attempt to contact me
    The debt review application was not done by me, but by my wife who gave my id number without me knowing and also was cancelled and no documents or contact was made after she provided id number, as she was told that about dishonest practices where debt review is concerned
    The call I made was after sending the prescription letter and to inform them that debt prescribed and need statements to support this

    I have lodged a dispute with ombudsman,as the interst charged is double the amount allegedly loaned.

    Has the debt prescribed?

  13. #110
    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by kent View Post
    Hi Vanesh

    I took out loan in 2008/11/15 and due 2010/04/30, which from 09/05/2009 debits went unpaid as I was no longer working.I had no further correspondance with them and in 23/05/2012 send them a prescription letter claiming debt as preascribed, and asked that they send me statements to support my claim
    The debt however still appeared and I lodged a claim with Transunion, who after 20 days came back saying creditor has not responded and removed the listing.

    However, when I applied for credit recently, was told that one of my accounts is 9 months in arrears, checked XDS and experian, whi acknowledged that the listing is stll on my profile
    XDS investigated, but came back after 2 days saying the creditor rejects the debt has prescribed and said I was liaing with them within the 3 years.
    They concluded the case without asking for any proof of such communication and I was told the creditor's feedback was final

    I then send email asking for the proof and was told the following
    2010/04/06 - a call was attempted no response, on the same day it was established that the client has left the company,
    2010/04/22 - received a debt review application,
    2012/05/ 23 - A call was received from yourself enquiring about the account,
    2012/05/23 – another call was received from yourself requesting a settlement quotation, the document was sent to your current settlement amount

    So, within the 5 years the debt is listed, they made 1 attempt to contact me
    The debt review application was not done by me, but by my wife who gave my id number without me knowing and also was cancelled and no documents or contact was made after she provided id number, as she was told that about dishonest practices where debt review is concerned
    The call I made was after sending the prescription letter and to inform them that debt prescribed and need statements to support this

    I have lodged a dispute with ombudsman,as the interst charged is double the amount allegedly loaned.

    Has the debt prescribed?
    Good morning Kent,

    I'm terribly sorry that you going through such an ordeal for a prescribed debt! Based upon information that you provide the debt prescribed on 9 May 2012 and you have claimed prescription. The confusion that they experiencing is with what interupts prescription. Only judicial process interupts prescription not a mere letter of demand or a call. You indicate that you have not acknowledged debt and that though there was debt review, no payments were made and further that this was cancelled. Since debt review does prevent a creditor from demanding payment, this initself, is not sound reason for them to reject your claim. IN terms of the NCA they were obliged to give notice to terminate debt review, which, i take they did not
    1. I just found out that one needn't place legislation in quotation marks since it is not copywrite! So

    15 Judicial interruption of prescription
    (1) The running of prescription shall, subject to the provisions of subsection (2), be
    5
    interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.
    (2) Unless the debtor acknowledges liability, the interruption of prescription in terms of
    subsection (1) shall lapse, and the running of prescription shall not be deemed to have been
    interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.
    (3) If the running of the prescription is interrupted as contemplated in subsection (1) and
    the debtor acknowledges liability, and the creditor does not prosecute his claim to final
    judgment, prescription shall commence to run a-fresh from the day on which the debtor
    acknowledges liability or, if at the time when the debtor acknowledges liability or at any time thereafter the parties postpone the due date of the debt, from the day upon which the debt again becomes due.
    (4) If the running of prescription is interrupted as contemplated in subsection (1) and the
    creditor successfully prosecutes his claim under the process in question to final judgment and the interruption does not lapse in terms of subsection (2), prescription shall commence to run afresh on the day on which the judgment of the court becomes executable.
    (5) If any person is joined as a defendant on his own application, the process whereby the
    creditor claims payment of the debt shall be deemed to have been served on such person on the date of such joinder.
    (6) For the purposes of this section, 'process' includes a petition, a notice of motion, a rule
    nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced

    So you need to make it clear to them that a call, or letter from them is not judicial process! Failing which challenge them to sue out summons and instruct your attorney to file a plea on merits, a special plea of preciption.

    Here I need the astute logical skils of my fellow TFSA members to assist in reasoning this out..


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