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Some creditors claim that they must be excluded from debt review. Can they do this?

Questions & AnswersSome creditors claim that they must be excluded from debt review. Can they do this?
Anonymous asked 4 years ago

I have a few questions I need advice on.
2. Wesbank/Direct Axis sold our account to a third party. The third party never attended to court and never negotiated in good will in the debt review process. Wesbank’s name is on the court order and not the third party which legally state that the debt is with Wesbank and nobody else. The third party has handed our account over for collection at the onset and is charging legal costs. We are paying as per the court order to Wesbank yet Wesbank no longer has this account and this is probably illegal for them to accept the funds and transfer to the third party as its deceitful. Due to not paying any funds to the third party, the debt would have probably prescribed and Wesbank should refund our funds paid for a non-existing account on their system. Surely, the Magistrate that was never informed of the “sold” account in court might have had a different outcome of the account.
3. Default judgment was taken against us for our FNB cheque account. Neither us or the debt counsellor received any letter of demand or summons and we were under debt review at the time. Judgment was taken in June 2011. Payments were made incorrectly by the payment agency to another bank at the onset and this was rectified later. I however received an email at the end of April 2014 from another attorney stating that they will be taking legal action against us for the same account. They stated they will advise FNB about the court order. Why would FNB want to take legal action twice if we’re still paying and they can not even provide me with a balance or statement?
4. My debt counsellor has failed to get me to complete the cancellation for all debit orders and send this to all the creditors. This resulted in thousands of rands for unpaid debit order fees. Would I be able to claim these costs back from my debt counsellor due to their negligence and failure?
5. One of my accounts on the court order is paid up yet the creditor state its not paid up and can not provide me with a statement of account. The balance on the court order with the interest rate specified and with the deductions of all payments made to date has solved this account to a nil balance and possibly an overpayment. How would I need to resolve this as the creditor refuse to accept that the account is settled.
6. The amendments of the National Credit Act, Act 14 of 2014, section 71, subsection (1)(b) states in terms of exiting debt review and obtaining a clearance certificate from my debt counsellor that I need to demonstrate financial ability to satisfy my future obligations in terms of the re-arrangement order for my mortgages (aa) and my Wesbank vehicle agreement (bb), show that there are no arrears on these accounts and that all other credit agreements has been settled in full. Then why are the creditors stating they do not fall within the amendments or that its not law yet and that the old agreements will be revived if the amendments state otherwise?

1 Answers
Matthys Potgieter Staff answered 4 years ago

Hi there and thank you for the questions


1. What Wesbank did sounds like securitisation. There has been heavy debate around this issue and it was even featured on Carte Blanche. Banks usually do this securitisation with mortgage bonds. How it works is as follows. they lend out money to a consumer. they then sell the debt to a third party and so recover the money that they have lent out. the third party then appoints the bank as “agent” to collect the funds… and the bank then pays over the funds to the actual owner of the debt. There is then a legal technicality that comes into play. the Banks are not allowed to act as agent for these third parties. Even though the law recognises the practice of selling debt to third parties. The third party should collect the funds themselves, and the banks actually have no legal claim to the funds. I suggest that you speak to an attorney regarding this. It will be best if you can get further advice on this from a legal expert.


2. If you were under debt review and paying according to your repayment plan it is illegal for the credit provider to terminate and continue to summons. They are well aware of this fact. Because the PDA disbursed your funds incorrectly it creates ground for your debt counsellor to mediate the situation. The banks batch processes these hand overs to attorneys and it does happen very often that many cases are handed over incorrectly. All that needs to be done is for your debt counsellor to bring it under the attention of the attorney that you are under debt review, that you have a court order and that you are making payments on the account. (Assuming that this account is included in the debt review). the case must then be sent back to the FNB debt review department and they must halt any further action on the account. I would also suggest that your debt counsellor request the bank to provide proof of delivery of the summons and thereafter request the judgment to be rescinded immediately.


3. The cancellation of debit orders remain your responsibility. Your debt counsellor does not have the mandate to cancel or stop a debit order instruction on your behalf. Consumers under debt review must make sure that all debit orders are stopped for all debt… because your debt is now going to be paid through the debt review. It is also wise to open a new bank account with a bank to whom you do not owe money, and change your salary to be paid into the new account.


4. If the credit provider is of the opinion that your account still has an outstanding balance, he/she must provide proof of such balance. Simply stating that you still owe them is not enough. They must provide you with a statement, as required by law. You can then start the debate from there. Compare statements and payments and see where you end up. If the balance is zero on your side it should be zero or at least very close to zero at the credit provider’s side as well. Keep in mind that all the systems used by banks, PDAs and debt counsellors might calculate interest in different ways.


5. The amendments to the act was only signed into law in May 2014. It gave the outline of the new provisions but the specifics still need to be captured in the form of Regulations. Only when the regulations has been drafted and published for public comment, and public did not raise any objections to those regulations, will the new Amendments be published and come into effect. so the answer here is simple, the Amendments are not in effect yet. Hopefully it will come into effect before 2014 is over.