Asked by the Customer on 21-04-2015 17:49:25
Question posted in the National Credit Act Law category relating to Western Cape
Question posted in the National Credit Act Law category relating to Western Cape
Removal of adverse listing/enforcement action on my credit profile
I only became aware of the adverse listing a week ago, after I have been informed that my job application was unsuccessful because I didn't meet the screening criteria. The listing relates to a loan from Capitec that fell into arrears during a period of unemployment in 2014. At the time, I explained my situation to Capitec and the only communication I ever received from them prior to my account being handed over and adversely listed was two sms requests and a few phone calls requesting payment. I was never informed of their intend to list the any default information against my name at the credit bureaus. (If I knew before the time of the impending action against me I would definitely have seek assistance to prevent the listing).
Timeline of events:
29/4/2014: Sms from Capitec "Prevent legal action being taken. Settle immediately of call to make payment. Please ignore if payment has already been made". I called Capitec in response, explained that was unemployed and without income.
20/5/2014: Sms from Capitec: "Reminder: Your load account is due immediately. Contact us to arrange payment. Please ignore if payment has already been made."
10/6/2014: I requested a copy of my credit report. The Capitec loan detail wasn't listed as a default or as being handed over and only appeared in section related to payment history.
17/6/2014: Without my knowledge and without any notification from Capitec, the account was listed on Compuscan and Experian under adverse listing/enforcement action.
26/6/2014: Sms from a company named NCS: "Congratulations you've reached NCS, now we can resolve your debt. Please call to make arrangements. Ref CAPExxxx" Still no disclosure regarding the related adverse listing.
28/6/2014: Telephone and email communication between NCS and myself, regarding my unemployment and commitment to resume payments on the account as soon as I have an income again.
Since then, I have received regular sms messages offering discounts on settlement of the loan, a monthly payment arrangement was made (which is still in place and paid every month as per the agreement), all with the tone and implication from NCS that as long as I keep paying that all will be in order.
My questions are:
Would the removal of this listing as adverse/enforcement action be a valid dispute as I was not provided with the 20 day notice period for the listing of default information?
While the information was listed after the 1 April 2014 amnesty period, it relates to a debt incurred prior to 1 April in 2012; and the account has been unpaid and in arrears since November 2013. My understanding is that adverse information regarding debt prior to 1 April 2014 should have been listed within 7 days of 1 April (regulation 3b). Not sure if my intrepetation is correct?
If this information for whatever reason can be removed from being displayed as an adverse lising, would it be safer and more efficient to hand it over to an attorney? (My priority is to hopefully have this information removed as soon as possible even if I have to pay a legal fee.)
Thank you in advance for answering my questions.
I only became aware of the adverse listing a week ago, after I have been informed that my job application was unsuccessful because I didn't meet the screening criteria. The listing relates to a loan from Capitec that fell into arrears during a period of unemployment in 2014. At the time, I explained my situation to Capitec and the only communication I ever received from them prior to my account being handed over and adversely listed was two sms requests and a few phone calls requesting payment. I was never informed of their intend to list the any default information against my name at the credit bureaus. (If I knew before the time of the impending action against me I would definitely have seek assistance to prevent the listing).
Timeline of events:
29/4/2014: Sms from Capitec "Prevent legal action being taken. Settle immediately of call to make payment. Please ignore if payment has already been made". I called Capitec in response, explained that was unemployed and without income.
20/5/2014: Sms from Capitec: "Reminder: Your load account is due immediately. Contact us to arrange payment. Please ignore if payment has already been made."
10/6/2014: I requested a copy of my credit report. The Capitec loan detail wasn't listed as a default or as being handed over and only appeared in section related to payment history.
17/6/2014: Without my knowledge and without any notification from Capitec, the account was listed on Compuscan and Experian under adverse listing/enforcement action.
26/6/2014: Sms from a company named NCS: "Congratulations you've reached NCS, now we can resolve your debt. Please call to make arrangements. Ref CAPExxxx" Still no disclosure regarding the related adverse listing.
28/6/2014: Telephone and email communication between NCS and myself, regarding my unemployment and commitment to resume payments on the account as soon as I have an income again.
Since then, I have received regular sms messages offering discounts on settlement of the loan, a monthly payment arrangement was made (which is still in place and paid every month as per the agreement), all with the tone and implication from NCS that as long as I keep paying that all will be in order.
My questions are:
Would the removal of this listing as adverse/enforcement action be a valid dispute as I was not provided with the 20 day notice period for the listing of default information?
While the information was listed after the 1 April 2014 amnesty period, it relates to a debt incurred prior to 1 April in 2012; and the account has been unpaid and in arrears since November 2013. My understanding is that adverse information regarding debt prior to 1 April 2014 should have been listed within 7 days of 1 April (regulation 3b). Not sure if my intrepetation is correct?
If this information for whatever reason can be removed from being displayed as an adverse lising, would it be safer and more efficient to hand it over to an attorney? (My priority is to hopefully have this information removed as soon as possible even if I have to pay a legal fee.)
Thank you in advance for answering my questions.
Message from the Attorney
Posted by Att. Patrick on 22-04-2015 07:27:02
Hi there and thank you for your question,
Would the removal of this listing as adverse/enforcement action be a valid dispute as I was not provided with the 20 day notice period for the listing of default information? --> Unfortunately not. The credit provider is under no real obligation to advise you that they will list your details with the credit bureaus. In fact, once they've listed your information they are not allowed to remove it for a certain time period, unless the information was incorrectly listed - even if you pay the settlement amount in full.
Even though the debt was initially incurred by you prior to 1 April in 2012, and has been unpaid and in arrears since November 2013, the debt continued to be due and owing in May & June 2014. i.e. the debt continued. The credit provider was therefore entitled to list your information with the credit bureau in June 2014.
GNR.144 of 26 February 2014: Removal of Adverse Consumer Information and Information Relating to Paid Up Judgments Regulations, 2014 (Government Gazette No. 37386) - which is what you are reading - deals with the removal of adverse consumer information and information relating to paid up judgments. I don't think that the credit provider (in your situation) took a judgment against you for the debt, and I don't think that you paid up that judgment.
3. Submission and utilisation of adverse consumer credit information by Credit Providers.—
(a) A credit provider must submit all information relating to paid up judgments to all registered credit bureaus within seven (7) days of receipt of such payment from the consumer.
(b) A credit provider who had not submitted all adverse consumer credit information and information relating to paid up judgments required for the purposes of these Regulations to registered credit bureaus as at the effective date of these Regulations, must submit such remaining adverse consumer credit information and information relating to paid up judgments to the registered credit bureaus within seven (7) days after the effective date of these Regulations.
(c) If the credit provider fails to submit the adverse consumer credit information for listing within the seven (7) days contemplated in Regulation 3 (b) it must not proceed to list such information with a registered credit bureau.
(d) A credit provider must not use adverse consumer credit information and information relating to paid up judgments that have been removed in terms of these Regulations for any reason, including credit scoring and assessment.
(e) A credit provider must not re-submit for purposes of listing adverse consumer credit information and information relating to paid up judgments that were removed in terms of these Regulations to any registered credit bureau.
The purpose of that regulation appears to be to "reset" everyone's listings so that all of the old paid up judgments are removed. i.e. a clean slate so people can start again. See here: http://www.ncr.org.za/press_release/March14/Removal%20of%20Consumer%20Adverse%20Credit%20Info.pdf
In my opinion, the credit provider was entitled to list the adverse information with the credit bureaus in June 2014 as that is the date that they decided to proceed against you.
This is different to the situation where the credit provider listed your adverse information with the credit bureau in November 2013 (for example) and then they were compelled to remove it in terms of the regulations and then they listed your information for a second time. If that was the case, then they would have been acting improperly. But I don't think that that was the case.
The question to ask is, as at 1 April 2014, was your credit record clean? If it was, then in my opinion you really have nothing to complain about to the credit bureau as they would have acted in terms of the regulations. There is nothing stopping a credit provider from taking no enforcement action against you in respect of an overdue account in 2012 and 2013, and then deciding to take action against you only in May, June or July 2014.
Therefore, in my opinion, this information can only be removed if you settle the outstanding amount .
I wouldn't necessarily hire an attorney to assist you in this, but if you wanted to take it further, you should complain to the Credit Ombud or the National Credit Regulator - the details of which appear in the press release above .
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Would the removal of this listing as adverse/enforcement action be a valid dispute as I was not provided with the 20 day notice period for the listing of default information? --> Unfortunately not. The credit provider is under no real obligation to advise you that they will list your details with the credit bureaus. In fact, once they've listed your information they are not allowed to remove it for a certain time period, unless the information was incorrectly listed - even if you pay the settlement amount in full.
Even though the debt was initially incurred by you prior to 1 April in 2012, and has been unpaid and in arrears since November 2013, the debt continued to be due and owing in May & June 2014. i.e. the debt continued. The credit provider was therefore entitled to list your information with the credit bureau in June 2014.
GNR.144 of 26 February 2014: Removal of Adverse Consumer Information and Information Relating to Paid Up Judgments Regulations, 2014 (Government Gazette No. 37386) - which is what you are reading - deals with the removal of adverse consumer information and information relating to paid up judgments. I don't think that the credit provider (in your situation) took a judgment against you for the debt, and I don't think that you paid up that judgment.
3. Submission and utilisation of adverse consumer credit information by Credit Providers.—
(a) A credit provider must submit all information relating to paid up judgments to all registered credit bureaus within seven (7) days of receipt of such payment from the consumer.
(b) A credit provider who had not submitted all adverse consumer credit information and information relating to paid up judgments required for the purposes of these Regulations to registered credit bureaus as at the effective date of these Regulations, must submit such remaining adverse consumer credit information and information relating to paid up judgments to the registered credit bureaus within seven (7) days after the effective date of these Regulations.
(c) If the credit provider fails to submit the adverse consumer credit information for listing within the seven (7) days contemplated in Regulation 3 (b) it must not proceed to list such information with a registered credit bureau.
(d) A credit provider must not use adverse consumer credit information and information relating to paid up judgments that have been removed in terms of these Regulations for any reason, including credit scoring and assessment.
(e) A credit provider must not re-submit for purposes of listing adverse consumer credit information and information relating to paid up judgments that were removed in terms of these Regulations to any registered credit bureau.
The purpose of that regulation appears to be to "reset" everyone's listings so that all of the old paid up judgments are removed. i.e. a clean slate so people can start again. See here: http://www.ncr.org.za/press_release/March14/Removal%20of%20Consumer%20Adverse%20Credit%20Info.pdf
In my opinion, the credit provider was entitled to list the adverse information with the credit bureaus in June 2014 as that is the date that they decided to proceed against you.
This is different to the situation where the credit provider listed your adverse information with the credit bureau in November 2013 (for example) and then they were compelled to remove it in terms of the regulations and then they listed your information for a second time. If that was the case, then they would have been acting improperly. But I don't think that that was the case.
The question to ask is, as at 1 April 2014, was your credit record clean? If it was, then in my opinion you really have nothing to complain about to the credit bureau as they would have acted in terms of the regulations. There is nothing stopping a credit provider from taking no enforcement action against you in respect of an overdue account in 2012 and 2013, and then deciding to take action against you only in May, June or July 2014.
Therefore, in my opinion, this information can only be removed if you settle the outstanding amount .
I wouldn't necessarily hire an attorney to assist you in this, but if you wanted to take it further, you should complain to the Credit Ombud or the National Credit Regulator - the details of which appear in the press release above .
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
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