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

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 

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 to be 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.

Thank you Patrick.
I'm just waiting for DirectAxis to get back to me on the outstanding balance.
Because it seems they have added interest to my balance.
Best Regards

Dear Patrick



My DirectAxis Loan account was R62000 when it was sold to Shackleton Credit Management.

Now its being handled by LMB Attorneys who says that Shackleton Credit Management is their client.

They want me to Pay them R125 000 - they say it's interest.

Are they allowed to calculate interest on a account that has been handed over? And when I'm Under Debt Review?

I would like to settle my Debt but I cannot afford this.

They have also emailed me a Judgement Order which they haven't executed yet.

Are they allowed to execute a Judgement Order if I'm Under Debt Review.

Please can you advise me on what to do.

Thank you & Best Regards

Michelle

Dear Patrick

Should I open a new Question for the above scenario?
Thank you & Best Regards
Michelle

Posted by Att. Patrick on 22-06-2021 10:55:09

Okay, so firstly, you need to realise that the interest can NEVER EVER exceed the capital amount. So, if your outstanding loan is for R62k, then the MAXIMUM interest that can accrue is R62k.

The issue that you can however cause issues, because if the interest reaches its cap, and you then pay R10k towards the outstanding amount, the interest can then increase again all the way back up to its cap of R62k. But it can never go over that.

So, a capital amount of R62k can only ever have interest of R62k as well.

Q: Are they allowed to calculate interest on a account that has been handed over? --> Yes.

Q: Are they allowed to execute a Judgement Order if I'm Under Debt Review. --> No. They need to deal with your administrator about including the debt under your debt review process. 

Dear Patrick Thank you so much for this!
I will Accept the Answer & Close this Question...
Then I will Ask a New Question, which is directly related to this, but I feel that I should start a new Thread because the Value of it is much more than R350 in my opinion. And also I might need you to help me more since my Debt Councillor has left me in the lurch.
Is that OK?
Best Regards
Michelle

Posted by Att. Patrick on 22-06-2021 20:45:00

Sure thing!