I purchased a vehicle in 2008 and due unforseen circumstances the vehicle was repossessed I offered to settle the arrears on the account but they were reluctant ,however BMW finance then sent a tracing and recovery company to pick up the vehicle,I asked the gentleman to provide me with a court order which he could not provide,they then proceeded with the repossession of the vehicle,I have now received 2 calls from MBD Attorneys for the outstanding amount of R110 000.00,this is appr 6 years later,can the attorneys issue a summons from the court via the sheriff of the court please help
Thank you for the question.
Your situation might be a case where the debt has prescribed. What this means basically is that the debt has expired. when a debt prescribes the creditor has no claim to it anymore… and the consumer does not have to pay it. Because your car has been repossessed it has in all likeliness been sold at an auction. The amount that they are holding you responsible for is the shortfall between what they got for the vehicle at auction and the balance outstanding on your vehicle finance account at that point in time.
Debt does not simply prescribe though. In order for a debt to prescribe there has to be no explicit acknowledgment of debt from the debtor (which is you) for a period of 3 years. This means that in 3 years you have not signed anything, paid anything or verbally made an arrangement to pay the debt. On the other hand, the creditor also had to make no attempt at collecting the debt for 3 years, no summons issued for 3 years and no letter of demand sent for 3 years. Only then will a debt prescribe.
If the debt has prescribed, the law sais that you as debtor must raise “Prescription” as defence in order for the prescription to stand. It is therefor important that when someone calls you, you simply say the debt has prescribed and then put down the phone. If you receive a letter, simply write back and say that the debt has prescribed. Nothing more, nothing less. If you do acknowledge the debt in some way, the prescription will be interrupted and you will be liable for it again.
Hope that your question has been sufficiently answered.