Debt: Legally cancelling a debt over 3 years old

[Fouchee]

Depends if the debt arises out of a judgement, which given the scenario certainly sounds possible.

Ordinarily the first step is to request that they prove their claim. This is to set out in detail as to how the debt arises.
I suppose given the time period involved since the last action, you could claim prescription. The onus would then be on them to establish why the debt has not prescribed.

Tnx for your reply Dave.
There was no judgement against this debt. I did my last transaction with ABSA in 2007 and that was the very last time there was any contact/communication between them and me. My last credit check made this year shows a ridiculous judgement from an attorney for R223-83 ,then I have a judgement for R100k (from 2008) related to my foreclosed company where I signed surety, but nothing related to ABSA.

[patrick1]

[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

[Dave A]

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

[Citizen X]

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

[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

[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=

[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.