Debt: Legally cancelling a debt over 3 years old

[Look02]

Viny

(1)My house was repossessed in 2008 and got evicted same year. I found a new job and try to apply for new bond with different bank in November-2010; only to find out my house was never sold. Last month the bank promised to evict the people that are currently occupying the property but the interest will not be written off because the sale did not proceed. Since more than 3 years has passed, and the bank never contacted me, can i use your letter to write off interest which accumulated 4 years ago since i was under the impression that the Bank sold the property?

(2)I had credit card with “xyz” bank and stop payments in 2007 (no job no income). I found new job and open new savings account with same bank in 2010. Somehow they managed to link the credit card to my savings acc (online). Last month (November 2011) i start receiving emails from collectors demanding 2007-2011 payments with 40% discount option. I have not used the credit card in nearly 5 years and destroyed it. Can your letter help when account is still active (activated without my permission) but never used?

[Citizen X]

Hi there,

Firstly, It’s more of a legal document than a letter that I provide. It is drafted specifically to apply to your individual situation as it not only includes the actual prescription claim with references to the relevant sections, sub sections, paragraphs and sub paragraphs of the Act but also relevant case law of the Supreme Court of Appeals that apply to your specific situation.
1. With regards to your house, regrettably, the prescription period for a bond is 30 years!;
2. With regards to your credit card, yes, the prescription period of 3 years does indeed apply and I can draft a legal document for you to claim prescription for this debt and therefore have the debt cancelled. Fortunately for you a credit card is not regarded in law as a ‘negotiable instrument’ ‘bill of exchange’ or ‘promissory note’, as the prescription period for these is 6 years.
I’m bases in Lenasia, South of Johannesburg. I normally prefer personal consultations, but if this is not possible because of your geographic location I can do business with you via email.
Bishop.consultants@gmail.com

[magiclifestyle]

This is such valuable information especially if someone has been lured into unaffordable debt as happened extensively prior to the NCA.

[Dave A]

i start receiving emails from collectors demanding 2007-2011 payments with 40% discount option. I have not used the credit card in nearly 5 years and destroyed it.

I tend to be suspicious of this sort of debt collection call, particularly when they are offering a discount option upfront. Generally this is because they know that they are on shaky legal ground.

Worse still, it could be a debt collection scam.

[Citizen X]

When does a debt become due

Section 12(1) of the Prescription Act provides that: “Subject to the provisions of subsections (2) and (3), prescription shall commence to run as soon as the debt is due.”
1. This important determination of when the debt actually becomes due is fairly straight forward. A prescription claimant needs to show in the claim that prescription has started to run as at a certain date;
2. This is also important where a defendant raises a plea of prescription, that is where, the creditor still takes the matter to court;
3. “In Gerike v Sacks 1978 (1) SA 821 (A) par 827-828, the court decided that when the defendant raise the plea of prescription, the onus is on the defendant to prove his defence and to prove the date when the plaintiff acquired actual or deemed knowledge required in terms of subsection (3) of “the identity of the debtor and of the facts from which the debt arises”
4. The time when the prescription runs depends on the creditor‟s knowledge of his right against the debtor. The rules determining when prescription begins to run in respect of various kinds of debt are all subject to the general requirement that the creditor should have knowledge of the identity of the debtor and of the facts from which the debt arises. Knowledge of the identity of the debtor for practical purposes means sufficient information for a process-server to be able to identify the debtor by name and address. The creditor must in fact know the debtor‟s identity, although knowledge of such facts will of course be relevant in determining whether the creditor exercised reasonable care to establish the debtor‟s identity. ;
5. To conclude, if a creditor sends you statements, if your details are on their computer systems then the creditor is deemed to know the identity of the debtor. The debt will become due and payable when an instalment or payment is not made, eg X takes out a credit card with abc bank in January 2007 for an amount of R50 000. He uses this entire amount by June 2007, he continues to make payments up to and including 30 November 2007 and then for whatever reason makes no further payments. The debt become due and payable 30 December 2007. The creditor then has 3 years to collect this debt, sue out summons or get an acknowledgement of debt failing which a prescription claim can be submitted as at December 2010. One must bear in mind that prescription does not take place automatically!!!

[nomdeplume]

Where a judgment has been issued by a court (in favour of the creditor), when does the debt prescribe ? Example - If judgement was obtained in 2007, but no attachment order was ever carried out...or is the judgment valid indefinitely

[Citizen X]

Judgement debts prescribe in 30 years

[Look02]

Hi guys

Sorry I was not able to reply earlier as i was on vacation.
A very hearty thank you for the advices/tips, special thanks to Viny for the wonderful outcome that you have obtained for me. I must say that the service provided by Viny was above and beyond expectations.
Once again, thanks for your support and assistance. Your service, including "The Forum SA" already recommended to others.

[Dave A]

What is the desired conclusion - a letter stating that they acknowledge the debt has prescribed?

[Citizen X]

Indeed, you hit the nail on the head! An official letterhead from the creditor or their attorney stating that the prescription claim is acknowledged, that the debt is now prescribed and that their systems have been updated accordingly.
The document I prepare entails an assessment of the individual case. Once that is done depending on the type of debt it is, certain sections of the Act are invoked. Then there are the legal hurdles. There are exceptions to prescription which in this document I prove don't apply. I also utilize SCA caselaw to prove that in the individual case prescription applies. The problem and challenge, that is, in my opinion is when the client attempts to do so himself and just phone and say, " I claim prescription," Creditors and their attorneys can tell when they dealing with a layperson to law and they just ignore the claim all together but when they see that someone extremely knowledgeable in that area is claiming on behalf of a client they tend to take the claim very seriously. Here's a bird's eye view of overcoming 1 legal hurdle, an actual extract from one of my letters
3.2 It is herein submitted that the debt became due on or about 2008
A debt is “due” when it is claimable by the creditor and, as the corollary thereof, it is payable by the debtor.


3.3 The creditor is deemed to have had full knowledge of the identity of the debtor and all the facts from which the debt arose as all the prescription applicant’s details were/are on the creditor’s computer systems including but not limited to the account number, the amount owed at that time, the prescription applicant’s contact details The creditor by way of a process server would have been able to identify the prescription applicant by name and address.

3.3.1 There has been NO Wilful concealment by the debtor with regards to his contact information.