Debtfree South Africaâ€™s debt counselling magazine
July 2012 www.debtfreedigi.co.za
Now is the time to speak up! The Debt Counselling Industry does not comprise of just one or two debt counselling firms. The true voices of this industry can be found in the many individual debt counsellors scattered across SA. In all aspects, these are
is not about them. It is not about one person ego’s, claiming to be the biggest or have the most clients, looking to see how one party can take the credit or advocating how this industry is now a business opportunity. No, the real truth
the true industry representatives, as they accurately understand the meaning of the word “counselling”; not mass production. They perform their work as prescribed in the National Credit Act and take pride in seeing their stressed consumers helped and personally see them through the process. What many don’t understand is the time, effort and fight that needs to go into each and every application. Some within the industry say by using certain tools, one could elevate many factors that stress Debt Counsellors. But can any Debt Counsellor not want to give each and every client, the right to their own rights? How can any Debt Counsellor not want to help their clients who need the in duplim rule? (The in duplum rule or 103(5) sets a limit to how much interest can be charged when a consumer defaults) The reality is that by using a certain “system”, it becomes easier for the Debt Counsellor with less queries and stressors from credit providers. But what about the client, is use of that “system” truly in their best interest? What many in this industry sadly seem to have forgotten, is that the debt counselling industry
of this industry, is all about the over indebted consumer. We as debt counsellors need to ensure that the rights of all consumers are upheld, no matter how hard a task it is. Ask any client which one would they rather have: a Debt Counsellor who is complacent or a Debt Counsellor who cares enough to take the time to fight? Debt Counsellors to date have saved tens of thousands of homes, cars and lives even though all the odds have been stacked against them – but these are the Debt Counsellors who fight and even when it looks as if there is no way out, they still continue to fight for their consumers rights. These Debt Counsellors are the ones that make this process work. They are the consumer’s debt guardians and success is always guaranteed. To these Debt Counsellors, we salute you! You have made a difference in the lives of thousands of South Africans. These are the only ones that consumers should seek out when in need of help.
CONTENTS 5 Editors notes
10 Why wont they leave me alone?
16 Consumers have rights
19 Courtroom etiquette
20 The Empire Union strikes back
24 Service directory
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EDITOR’S NOTE The Olympics - wow they come around every 4 years and each time we sit and watch these athletes in their physical prime. It amazes us how fast and fit they are. Consider if you will, those who run the long distance races. I doubt many of us could even keep up for 30 seconds at the pace they are going. What’s their secret? Practice, practice and more practice. To run a race like that takes fitness, endurance and the will to keep going even when your muscles are begging you to stop. Well, in many ways debt review can be the same. Some people mistakenly think of debt review as a sprint. They start with a bang and then...after a few months they get distracted and allow themselves to slow down, to stop paying attention to their budget and slack off. Then before you know it along comes a small obstacle and they stumble right out of the process. Of course, these days it seems that the Creditors are creating obstacles and are trying to take people out of the process and harass them - See our main article about consumers getting summonses after they already have a court order for an example. The process of debt review, while for some is just a temporary measure, is for vast majority a long distance run. You need to be willing to
stay “in it to win it”. You need to pace yourself and watch your budget. You need to overcome distractions and even your own desire to take it easy. So take a lesson from the Olympic athletes. Listen to your coach - who in this case is your Debt Counsellor. Stay on the right track and don’t let fatigue take you out the race. After all the biggest difference between the Olympics and debt review is that whereas only 3 people get to stand on that box and get a medal, in debt review thousands and thousands of consumers are heading for victory...over debt. We hope you enjoy this issue of Debtfree DIGI. Check out all the news and advice on court room etiquette and dealing with bank harassment. DCs Beware of Debt Vader’s sharp tongue and conspiracy theories. Consumers remember you need to keep on running. Push on toward that, oh so sweet, goal of being debt free.
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NEWS FLASH For daily debt counselling news visit www.debtfreedigi.co.za NCR Brings VDMS to a temporary halt The much publicised Voluntary Debt mediation pilot project was meant to launch on the 2nd of July 2012. This did not happen as the National Credit regulator stepped in at the last possible moment to investigate the legality of various aspects of the project. The project which is being organised by the National Debt Mediation Association - a Credit Provider representative body- seeks to produce a debt review like product called â€œvoluntary debt mediationâ€?. The process is set to use a computer programme to propose how to settle a consumers debt over 5 years. One of the aspects that the NCR have now appointed an outside investigator to look at is the legality of Debt Counsellors being involved and where they would receive payments from. A Debt Counsellor is not allowed to act as an agent of a creditor. Also Creditors cannot perform the functions of a Debt Counsellor. It seems that a legal letter from a Debt Counsellor Deborah Solomons was one of the factors which lead the NCR to step in and have a closer look.
from DCASA members. Some claim that most DCASA members do not actually know enough about VDMS to have an opinion. Others feel that the newsletter was prematurely sent and expresses the feelings of very few DCASA members. They are concerned that this might be a new spark which lights another leadership crisis within DCASA. Whatever the case it seems that DCASA and the Alliance of Professional Debt Counsellors are taking opposite stances in regard to the project. AllProDC have said that they do not support VDMS and while they will not prevent members from being a part of any pilot program they would advise caution. The NDMA have said that they would choose the 3 biggest users of the DCRS proposal creating software to be part of the pilot. There has been talk about which Debt Counselling firms would be the BIG 3 The three participating Debt Counselling firms were recently identified as: Octogen, Debt Busters and Consumer Assist.
One DC Firm in the western Cape disputes whether they are not in fact a bigger user of DCRS and should not be included. Either way it seems likely that they will only find out if the In a recent newsletter the Debt Counsellors project will go ahead in about a months time Association of South Africa stated very clearly after the independent investigation has come that they love the idea and that it is supported to a close. by the National Executive Committee of DCASA. The newsletter was met with mixed feelings
NEWS CONT. Atlas Finance accused of producing “Fake NCR Website information called into question Attachment Orders” The NCR have a website (www.ncr.org.za) which It seems that Atlas Finance (or someone acting has a search function to help consumers find on their behalf) have sent out a fraudulent a Debt Counsellor in their area. Unfortunately Attachment order and have tried to collect not all the names and details shown on that list funds from a consumer based on this document. are accurate. The Krugersdorp Magistrates Court have theDCI have conducted monthly calls to Debt issued confirmation that they never issued the Counsellors country wide and have gathered Attachment order and that it appears to them what seems to be far more accurate statistics. to be a “fraudulent document”. Deborah Solomon (the founder of theDCI) said of the discrepancies: “As an example, our One Debt Counsellor says he has seen other list for March 2012 shows that while there are examples of the same sort of thing and is 2141 debt counsellors listed on the national pushing the National Credit Regulator to take database (the NCRs site) , 305 had incorrect action against Atlas Finance. For an example phone numbers, with 232 of those numbers of what these “fake” attachment orders look out of order, 56 wrong numbers and 17 fax like head over to: http://debtfreedigi.co.za/ numbers.” atlas-finance-come-fire-accusations-fruad/ She said 444 debt counsellors on the national list “were no longer working, seven had been de-registered by the regulator, 32 had been DCASA Survey excluded from the National Credit Regulator’s site, 21 Debt Counsellors had given their books DCASA – the Debt Counsellors Association of away to other counsellors, and 384 were simply South Africa have launched a survey for DCs not practicing. about DCASA itself, it’s meetings, whether “We were unsure of the status of 633 Debt Debt Counsellors are practicing or not as well Counsellors who were simply unavailable, as the controversial VDMS project. which left us with 759 verified, practicing debt They assure their members that they can freely counsellors as of April,” Solomon said. speak their minds and not be concerned that This just goes to show that consumers would members of the DCASA NEC are looking over be better off looking in the Debtfree DIGI their shoulder to see if they disagree with them directory section or visiting sites like theDCI about VDMS. They say:” All submissions are (www.thedci.co.za) for Debt Counsellor details. anonymous and are totally confidential”. They encourage members to express their “honest opinions”. If you would like to partake head on over to: http://www.dcasa.co.za/survey.html
WHY WONT THEY LEAVE ME ALONE? It is a common misconception that Debt Counsellors restructure consumers debt. It is far more accurate to say that Debt Counsellors make suggestions to the Magistrates Court on how a persons debt might be restructured. They only do this , of course, after having made suggestions to the consumer about how to adjust their budget and having sent a payment proposal to each of the consumers creditors. These creditors then indicate if they are happy with the proposals and the Debt Counsellor then presents that information to a Magistrate whoâ€™s job it is to restructure consumers debt. They are allowed to do so due to the power afforded them by the National Credit Act. At first many Magistrates did not know a lot about the National Credit Act and thus were unsure of what to do when they received a application from a Debt Counsellor about a consumers debt. Some Magistrates where so worried they would do the wrong thing they simply postponed the case or moved it to the
end of their court roll and said they would deal with it later. Others flatly refused to hear debt review matters. Who can really blame these Magistrates since no one had offered to train them in regard to debt review. At some point the Debt Counsellors themselves realized they would have to offer information to Magistrates about the process. For the most part things have drastically improved since back in ‘07 and ‘08. Nowadays it is not far fetched to have a matter set down on the court roll and then have a court order granted within a few weeks at smaller courts and within 3 months at larger courts. Sadly, many of the people who first entered debt review have still not got their court orders yet because of all the baggage from before -when things were a bit unclear. However recently a new menace to the debt review process has reared it’s head: the creditors themselves. Many of them do not want to get money over time and would rather try get people out of debt review and sue them and strangely collect less funds from the consumer. (This is because they then have to pay collection agents commission to collect debt that the consumer was willingly paying anyway) It’s weird but this is what is happening. Many large creditors are issuing letters a called section 86(10) notices and trying to take consumers assets away. This has meant that it is now more important than ever before for consumers to get their debt restructuring court orders as soon as possible.
will all stop harassing them. Let’s take a look at some of the basic reasons why a consumer with a court order restructuring their debt might still get pestered by credit providers. Incompetence This is perhaps the most common reason why a consumer might receive a demand for payment even when they are paying via debt review each month. Sometimes their is an aspect of human error involved. For example when a consumer gets a granted court order the Debt Counsellor will send a copy to the various creditors involved. The creditors then have to capture the court order onto their system and have 10 days in which to comply. Recently however there have been mix ups due to poor training and some of the data capturers have captured the first name they see on the court order (that of the Debt Counsellor) instead of the consumers name. In other cases the data capturing is just not done. Some creditors debt review departments are just under staffed and can’t keep up. Some creditors are so incompetent that they are unable to make sure that the money paid into their accounts from the Payment Distribution Agencies are allocated to the consumers accounts fast enough. In many cases this has been going on for a long time and they are still trying to catch up payments from long ago that they just left sitting in holding accounts. Yes their job is handling money but...no i guess you are right they should know how to do it. It is inexcusable.
What must be realised is that for various reasons Old computer systems when a consumer gets their debt restructuring Some banks (and other creditors) have such big court order it does not mean that the creditors computer systems that have been built over
years and years, with layers and layers of new code added that they now find it impossible to actually capture the fact that a court order has been granted. They might find they are unable to actually change the interest rate shown in the original contract. This is one reason why they often do not send consumers who are under debt review a monthly statement (not just because they are cheapskate). They do not want consumers to see that changes as per the court order or the debt review have not been made. ABSA have even said that their email servers are so bad that they can’t receive a 3 page scan of the court order without problems. Bad Faith terminations This has been a recent bane for Debt Counsellors and consumers but is now starting to bite the creditors themselves in there own rears as they are no longer even sure who is under debt review. Standard Bank recently embarrassed themselves by sending out a spread sheet that showed they were “terminating” the debt reviews of many consumers who were not only paying each month but who also had court orders. These are called “bad faith” terminations and when legal action is taken to try collect the debt courts will put these accounts back under debt review. Some Creditors have been accused of having computers simply generate one of these letters when 60 days of debt review have passed no matter what. Non Cooperation between different departments It seems that the various product houses often decide to simply ignore their own internal Debt Review departments arrangements. This has seemingly been the case in a large amount of bond related accounts. It seems
that the Legal Department or Collections will not cooperate with their fellows in the Debt Review department since it will interfere with their monthly collection targets. Rather ruin some families life than miss your target and look bad. Willful harassment It has been said by various Debt Counsellors and certain industry bodies that the creditors (and here they mainly mean certain members of the Banking Association of South Africa) are trying to keep Debt Counsellors busy dealing with 86(10) notices instead of helping consumers. At the same time the NDMA -a credit provider representative body - is running around saying debt review is not working well enough and that they (the credit providers) want to launch a clone product called debt mediation instead which will be so much better. Creditors know that if you call consumers and chase them enough they will often crack and make independent payment arrangements outside of debt review or even leave debt review. This will then allow them to later try go after the consumers assets and sell them. This is obviously unethical and helps no one in the long run. Consumers who are being called and harassed are encouraged to keep a log of the time, duration and content of each call they receive. They should try get the name of the person calling and make sure which company they are calling from. Armed with this information steps can be taken to complain with the help of their Debt Counsellor and maybe even the NDMA or Banking Ombud about the matter.
What can you do about it? Well, the first thing you should do, if you already have your debt restructuring court order and you now receive harassing phone calls or a Section 129 notice or even a summons for one of your debts, is to talk to your Debt Counsellor. Do not mistakenly think that you can now ignore your creditors or their agents when they harass you. By doing so you might find yourself dealing with even more complications. One consumers experience illustrates the complications that can arise. He says: We have been in debt review since 2009 and have been making regular payments monthly. Not long after we entered debt review we were issued with a “sale in execution” against our property. We fought against it and fortunately the courts ruled for the judgment to be rescinded. We then continued under debt review, paying toward our debts, including the property, each moth. In 2011 it turned out that Nedbank had again gone and done the same thing. Once again we got the judgment rescinded. At that time we had even been paying a higher amount than when we first entered debt review. According to the moratorium (which was in effect at the time when a renegotiation happened) we had to make at least 80% of the original contract installment for the bank to “back off”. Fortunately we were able to do so. Since then Nedbank has cancelled the debt review and once again gone and obtained another judgment against us. It is incredibly frustrating especially as we are paying them via debt review each month. We thought maybe debt review was not working for us and have tried speaking to Nedbank directly ourselves instead of going through our debt
counsellor but we were advised by Nedbank’s consultant that under “no circumstances” were they going to “back down”. We even offered to try pay something extra each month above the agreed 80 %. They say they are not interested. The latest complication is that we have now received a notice for sale in execution once again. The notice quotes a total arrears amount of R238 000,00. This situation is really stressful and unnecessary. It might seem impossible that a big creditor like Nedbank can ignore their own Debt Review departments agreements and the consumers court order and go and get a 3rd judgment against the same consumer. Especially since they have had the previous 2 overturned. it is worth noting that since the Sebola v Std Bank Constitutional Court ruling at least in the future Nedbank (and other creditors) will have to make sure these consumers know about any legal action they are taking against them. It is a credit providers right to make their own life more difficult and to make fools of themselves in court, if they want. Sure, it costs them money when they lose the case (or have it overturned or rescinded) but they are allowed to try these things. The good news is, that if consumers fight back they almost always win. So don’t be surprised if for one reason or another you already have your debt restructuring court order and you suddenly receive a summons or demand letter from one of your creditors.
NEXT COURTROOM ETIQUETTE PG18
DEBT COUNSELLORS: Consumers look to us as their guardians, support structure, advisory council and at times, their last option of hope. If YOU cannot take the time to care enough about your consumers and this industry, maybe itâ€™s time to rethink your profession. 4 minutes in one of your days to expose the truth is the best deal you will ever get. Sign to Unite. http://www.facebook.com/pages/Sign-2-Unite/327470733965318 http://www.gopetition.com/petitions/stop-banks-acting-in-bad-faith.html http://www.facebook.com/pages/theDCI/218268998238689
UNITED WE STAND
Time is running out to sign up CONSUMERS: Do you get nervous when people from the bank phone you and say things like “ your debt review is cancelled”? Are you tired of getting letters from creditors who you are paying through debt review threatening you? You can help all debt counsellors to make the difference that is so needed. Your voice needs to be heard so that the banks CEO’s will understand the truth of YOUR reality. Sign to Unite. http://www.facebook.com/pages/Sign-2-Unite/327470733965318 http://www.gopetition.com/petitions/stop-banks-acting-in-bad-faith.html http://www.facebook.com/pages/theDCI/218268998238689
Consumers have rights When a consumer receives their Court Order from the Magistrates Court restructuring their debts they would be forgiven for feeling that their problems with their creditors are finally behind them. Sadly some creditors, like ABSA, continue to harass these consumer even though these consumers may be paying each and every month. Often this happens even where the creditor has, in the past, agreed to the debt counsellors proposals. these creditors may later simply change their mind and try go after the consumers assets and completely ignore the debt review. In South Africa creditors have a legal right to take consumers to court to try collect funds or assets from them at any time. This is true even if the consumer is not in the wrong. The creditor will lose the court case but they do have the right to try. However consumers also have rights. Armed with the granted debt review Court Order restructuring their debts consumers can go to court and successfully defend their assets. What is more they can even ask the court to make the creditor pay their legal fees in the matter. This is important since a legal defense at High Court is costly. Debt Counselling firms like Consumer Assist say they are “ready to help their clients defend their rights” against such action.” We are seeing creditors going after consumers houses and cars even when they have court orders for debt review ... creditors like ABSA are issuing summonses after court orders have already been granted... even when our clients are paying according to their debt review court orders each month.” They say they try to reach the creditors involved in such cases but find that it “takes ages for them to respond”. This means that consumers need to be willing to go to court to defend themselves. If you receive a summons or even a Section 129 Notice from a creditor who is part of your debt restructuring Court Order do not ignore it! Contact your Debt Counsellor urgently.
The Do’s and Don’t of going to court to get your debt restructuring Court Order For many consumers the prospect of going to court in order to get a debt restructuring court order is very intimidating. If you have never been to the Magistrates Court before here are some tips to help make sure you don’t step on anyone’s toes or embarrass yourself.
the auditorium. Talking, whispering, giggling, shuffling papers, or disturbing the composure of the proceedings with phones or pagers is not allowed. Cell phones and similar devices should either be off altogether or on a silent setting. It is not appropriate to be seen using your cell phone to send messages or instant messages during the session. Rather wait or exit the court if you need to make or receive a call. Never do so inside the courtroom.
The Dress code for court is closer to “Sunday Best” than “jeans and a T-shirt”. You should not look overly casual. While an Armani suit might also be a bit much, and call into question if you really need debt review, it is better to err on the side of well dressed rather than sloppy. No hats are allowed. Don’t bring food, gum, or anything to drink into the court room. Even if you feel it would When you come into and leave the courtroom help. do so quietly. It is polite to nod or bow your head toward the Magistrate in acknowledgement In South Africa a Magistrate is traditionally when entering and leaving if they are already referred to as “Your Worship” as opposed to present in the court room. Your Honor. It is important to behave respectfully in the courtroom so that the proceedings are not unnecessarily disrupted. Indeed interrupting the court process could find you in contempt of court. If necessary, you will be removed from
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THE EMPIRE UNION STRIKES BACK!! This month has been very exciting for Debt Counselling! First off, Kudos to Debt Counsellor Deborah Solomon, who managed to get the NCR’s attention long enough for them to stop the VDms pilot (still sounds like a STD).
So yes, the pilot has been stopped, and as Debt Counsellors celebrate, the creditors are busy regrouping and finding new ways to introduce some new version of VDms. VDms, is not going anywhere because creditors believe that their pecuniary loss is greater than the benefits they may receive if they participate in the statutory debt counseling process. Further, the NCR has merely put the VDms pilot “on hold” to see if it contravenes the NCA, which it is not going to do, simply because the NDMA is not a credit provider and thus isn’t bound by the same rules as its “affiliates”. But, what if it’s even more sinister than that? Let’s say that the NDMA didn’t just come up with VDms on its own, but rather that it was a collaborative effort between DTI, NCR and the NDMA. We know that the PDA’s were an after thought, but that’s where the money is!! So what if this is all about nationalising the PDAs? Think about it, everyone wins, the DTI gets money, NCR has even less work to do because there’s only 3 firms to deal with, and the credit providers get 3 Debt Counselling firms sympathetic to their interests and which
just coincidentally have strong affiliations with specific PDAs. I believe that this is why there has still been no amendments to the NCA, why amend something that going to be obsolete anyway? I believe that independent DCs have been sold out by the NCR and DTI. The NDMA has the money and infrastructure to manage the industry and they are prepared to do so but on their terms (VDms), so the NCR has handed over the www.NCRDebthelp System to the NDMA to manage, and rumour has it that the NDMA is beefing up its complaints department, so in all probability that function will also be handed to the NDMA. The only mistake they made was that the VDms pilot was launched prematurely (no sexual innuendo intended), in light of all these other changes and DCs like Deborah Solomon, myself and a number of others took exception to having our profession annihilated by the NDMA. The VDms scheme is what I call a “wee-wee moment” (that’s when the man in charge takes 5 minutes for the privy and the 2nd in charge goes insane). Sadly it seems that Debt Counselling was almost set to fail from day one, our associations cannot find their behinds with both their hands with the lights on and as DCs we know this, and yet we are still disappointed when they let us down, like when they didn’t stop the DCRS guidelines (which are now industry “rules”
750 practicising DCs. The 2 Associations have maybe...200 paid up members between the 2 of them, so they cannot be representative of the industry. So what happens after the NCR investigation is concluded and the VDms pilot proceeds, what are DCs going to do? You’ll either have to go find another profession or go work for one of the 3 chosen firms. Unless DCs are prepared to mobilise and quickly, and to this end I am pleased to inform you that for once the light at the end of the tunnel is not an oncoming train, thanks to the New Economic Rights Alliance (New ERA), who are prepared to take DCs under their wing, so that we can become a Union of DCs. The Chairman of New ERA, Scott Cundill, informs me that they have 80 000 consumers who support New ERA and they are growing at a rate of 1000 consumers a day. New ERA is prepared to give DCs a home in their organization and have committed the support according to creditors) or when they wrote the of their consumers to the Union. There will be “Code of Conduct” for DCs and let the NCR pass a nominal monthly fee (far less than what you it off as its own. The Associations are not at paying now) and you will have the protection fault here, we know as DCs that the “3 chosen of the Union, the consumers who support it ones” Paul Slot, Andre Snyman* and Luke Hurst and the experience of other DCs to fall back on. will agree to just about anything that’s going It is now up to the DCs themselves to register to further their own interests. We, the DCs are with the Union and to grow it into the largest the idiots; we are still waiting for fair play from association of DCs in the country; this will force the creditors, regulation and enforcement by the NCR, DTI and the NDMA to consult with us the NCR and protection from the Associations. before making any further industry decisions.
THE UNION WANTS YOU
The truth of the matter is that DCs can not negotiate with the NDMA, NCR or DTI, simply because we remain divided and there are so few of us that, we just get ignored. At present there are well over 2000 DCs registered with the NCR, theDCI has done some research on this and have found that there are only approximately
Whether you agree with me or not, if you do nothing else this week, register with “The DCI” on their website at www.thedci.co.za and JOIN THE UNION by sending an e-mail to chairman@ newera.org.za.
* Debtfree DIGI has subsequently learnt that Andre Snyman did not in fact sit in on any meetings to do with VDMS.
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Information resources & services www.thedci.co.za Designtimes South Africaâ€™s creative resource www.designtimes.co.za TRAINING Compuscan Academy 0861 51 41 31 www.compuscanacademy.co.za You & Your Money Western Cape: NCR Debt Counsellor Training: For a Cutting Edge Course with practical input contact: You & Your Money Dawn Jackson Dawnjackson.training@telkomsa. net Cell: 072 1769789 (021) 761 3287 FINANCIAL ABSA Customer Debt Repair Line 0861 005 901
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leave the Conference well informed. Judge Flemming will unpack the NCA as only he can, Mike Schussler will unpack the economy as only he can, nobody is better equipped than Frans Haupt to inform Debt Counsellors about proposed changes to the NCA , Magauta Mphahlele will unpack VDMS, the NDMA will showcase the first deliverable of the Switch and Paul Slot will tie everything together towards the end.
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Published on Jul 22, 2012
theDCI Special Edition of Debtfree DIGI July 2012. News and advice for consumers. The magazine is all about debt review and dealing with deb...