Debt: Legally cancelling a debt over 3 years old

[Citizen X]

1. Are debt collectors hounding you by post and/or telephone for debts older than 3 years?
2. Law students at an advanced stage of LLB studies have a legal way based on the law to have such debts cancelled!!!!!
3. You will be provided with a letter stating certain sections of a certain Act that you can either post, email or take personally to the debt collector or the creditor i.e. bank or store
4. The law offers you a duel guarantee a) The creditor is obligated by law to cancel the debt, b) The creditor does not cancel the debt but sends you summons, this very act will become your defence
Eg.On 1 August 2008 you entered into a cell phone contract with xyz cell phones. You pay until 1 July of 2009, and then for whatever reason, you stop paying, The creditor has from 1 July 2009 up to and including 1 July 2012 to collect this debt from you failing which the debt can be cancelled by following a specific legal procedure.

Invitation to take part in a survey: Fill in PDF questionnaire
1. Preliminary research that I have conducted has demonstrated that many people are unaware of their rights regarding extinctive prescription claims. I have also established that certain creditors don’t have policy documents on extinctive prescription. I further established that there is a great deal of uncertainty from both debtors and creditors as to how extinctive prescription should be claimed and whether there is a difference between an extinctive prescription claim and a special plea of prescription. There is also unpredictability as to how a creditor may respond to your your claim. It doesn’t help to have a law and that law doesn’t work!!!!!
2. I believe that a section should be added to that act which places a lawful obligation on the creditor to process a debtors prescription even where the debtor has done so telephonically and confirm the same in writing.
If you would like to take part in this survey, kindly send a blank email to vanash.naick@gmail.com with the subject survey. I will then send you a pdf fill in form, you select your answers, save it and then email as a pdf attachment to vanash.naick@gmail.com
This is a good cause!!!
Kind regards,
Vanash Naick

[Modise]

Hi Viny,

What happens when a debt is bought from the creditor by the so called debt collectors? Does the 3 year period apply from the original date of debt or from the date of purchase by the debt collector? Not sure if i make sense.

[Citizen X]

Hi Modise,

It applies from the original date of debt! It is imperative that I make the following clear: The Act/legislation/statute applicable is the prescription act 68 of 1969. That being said, the creditor will not make you aware of this and will try and trick you so that the prescription period can start all over again. The most common ways they do this, is to get you to acknowledge the debt, i.e. say that you unemployed and will pay someday. Prescription will then run from the date you state this, also, if you make arrangements to pay, prescription will be interuptted and run from that date.
Bear in mind there is a very specific legal way to claim prescription!!! The fee mentioned includes not only giving you this very specific legal letter but also saving this letter as a pdf file on a disc for you so that you can also email it as an attachment. In all the cases we dealt with, the creditor immediately cancelled the debt and updated there records.

[Modise]

Thanks Viny.

[Mr Capo]

If a debt collector attempts to "trick" you into a new prescription period can you use your letter to still cancel the debt?

[Citizen X]

Indeed you can! Most commonly, the creditor via an attorney will attempt to get you to acknowledge debt or make payment arrangements. Whilst these factors do cause prescription to start all over again, it is a material fact that debt collectors such as mbd, vvm, norman bisitetc donot record their telephone convesations and the person who phones you is not an attorney!

[Nydiap]

Hi Vanash,

I have old debt from 2006 but now see that in 2011 a judgement was put on my credit record that was not there before, can they do this and is this then still prescribed debt?

[kent]

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?

[Citizen X]

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..

[Dave A]

It seems this is what you get for your R400.00:

3. You will be provided with a letter stating certain sections of a certain Act that you can either post, email or take personally

Or you could send them a link to this thread.