Dear Patrick I have another Question it ...

Asked by mvdventel on 19-05-2021 09:42:14
Question posted in the National Credit Act Law category relating to Western Cape

Dear Patrick 

I have another Question - it is related to this one but separate.

https://www.salegaladvice.co.za/question/7415/is-there-a-way-that-one-can-check-if-an-application-case-has-been-submitted-to-th.php

I am under Debt Review and originally had 12 Creditors of which I've paid off 8 Creditors.I now have 4 Creditors left to pay.2 of these Creditors are Prescribed namely: NedBank and DirectAxisMy ID number: 681116 0162 081Name: Michelle Bark

Nedbank:Last payment was: 26 Feb 2018I have corresponded with them about my debt - via email & telephonically during this period though.

So my Question is:Does this make my Prescribed Debt claim Invalid?

DirectAxis:Last Payment was: 26 July 2017They never contacted or phoned me to ask why I havent been paying them.But they say they have sent me a Summons to interrupt the prescription;  they emailed me a Return of Service as Proof of Delivery to my home address. See attached Return of Service.

So my Question is:Does this make my Prescribed Debt claim Invalid?

I would apppreciate it if you could advise me on what to do.

Thank you & Best RegardsMichelle

Answer to the Question

Posted by Att. Patrick on 19-05-2021 22:17:47

Hi there Michelle and thank you for your follow-up question, 

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow-up questions in order to clarify your question. If you have a new question, you must please open a new thread. 

Re: Nedbank - if you've corresponded with Nedbank between Feb 2018 and now, and in that correspondence you have admitted the debt, or that you owe some money to them, or you've made some sort of promise to pay, then you've interrupted prescription.

"The running of prescription is interrupted by: an acknowledgment of debt by a debtor, for example, if a debtor pays part of his/her debt to the creditor before prescription."

Payment of an amount is taken as an acknowledgement, but you could acknowledge the debt in an email as well. 

Re: DirectAxis - The issuing of a summons is not good enough to interrupt prescription. They need ACTUAL service of the summons. So, if the sheriff's return of service is to be believed, and he says that he served it on you, or on your residence, or on your place of employment, or on your chosen domicilium, then DirectAxis would have interrupted prescription. If you disagree, you will need to file a special plea (defence) as part of your plea, that the claim has prescribed and DirectAxis would need to prove in court that it has not prescribed. 

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 

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