Debtfree South Africaâ€™s debt counselling magazine
June 2012 www.debtfreedigi.co.za
5 Years Later
The ones who made this work
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.
the consumer. There have been findings that say that creditors must not charge too much interest (Section 103(5)) and we have even seen another Debt Counselling Association (AllProDC) established. Then too there are new 03 Editors notes entities like the Debt Counselling Industry who have made an appearance. theDCI -who are 05 News industry neutral- have been doing their best to 10 Sebola vs Standard Bank promote debt review and show they good side of the industry and how it has helped so many 14 Debt Review: Year 5 people. Yes, the industry has been through some big 26 Debt Vader changes in the last 12 months with the usual mixed bag of results depending who you 29 Money saving tip ask. We hope you enjoy looking back on the 30 VDMS developments (briefly) and joining us as we muse on what could lie ahead. Hopefully good 32 Directory things like: greater accountability and less legal run around from creditors who seemingly went insane with 86(10) “we want to sue you letters” for consumers under debt review recently. In fact, when we look back on the last 12 months the common thread has been Section 86(10) and creditors saying they do not want to help consumers through debt review. 10 years...that’s how long industry experts Debt Counsellors and the NCR have fought said it would take for the debt review to fully hard to ensure that consumers can still take establish itself. Well, this month marks the half advantage of this portion of the National Credit way point of that prediction and the last 12 Act and the next 12 months will probably months have seen a lot of developments for see more and more fighting to get creditors the industry. The Regulator (NCR) has been to live up to their obligations and to stop largely out of action and it seems that many discriminating against consumers under debt legal decisions and industry trends have gone review. against the consumer...but not all. There has So enjoy the news, reviews and ...views and we been a bit of balance brought to the force (that’s hope this month sees you one month closer to just for Debt Vader one of our contributors being...you guessed it: debt free. who seemingly doesn’t trust voluntary debt mediation) recently. The Constitutional Court have ruled on the service of Section 129 “we are going to sue you letters” and it’s good news for
NEWS FLASH For daily debt counselling news visit www.debtfreedigi.co.za Caught out The South African Police have arrested Advocate Llewellyn Fernando Blankenberg who is both an advocate and a registered debt counsellor, who was practicing in the Atlantis area in the Western Cape. This is great news for consumers in general as it shows that there is recourse to theft and fraud committed by DC or the legal profession alike. More specifically it will assist those consumers who gave Advocate Blankenberg funds thinking they would be paid over to their creditors. This once again highlights the value of working through a PDA. A Payment Distribution Agency handle payments from consumers and make payments of those funds to creditors and DCs when applicable. Though not included in the National Credit Act they do perform a useful function and should be something consumers ask about before deciding to use a DC or not. It is a criminal offense if a DC receives money from consumers directly from a consumer (other than the R50 application fee). Advocate Blankenberg of SA Debt Counselling (previously Blankenberg Debt Counsellor) was arrested on the 7th June 2012 by the SAPS, in Atlantis for receiving money from consumers and not paying installments over to the two PDA’s for distribution. To date 6 formal fraud charges have been laid against him but it is assumed that many more consumers may now come forward with similar
accusations against him. An investigation and litigation will now follow.
Alliance of Professional Debt Counsellors Code of Conduct complete The Alliance of Professional Debt Counsellors (the second biggest Debt Counsellors Association) have been under pressure to formulate a Code of Conduct for members. Though recognised by the NCR as a Debt Counsellor Representative body they have met resistance from the Debt Review Advisory Committee (DRAC) as well as the National Debt Mediation Association (NDMA) in regard to being allowed to attend meetings to hear what is going on in the industry. These bodies indicated that they would be happy if AllProDC members all sign the “code of conduct”. The code they were referring to is probably the code that was created by the Debt Counsellors Association of South Africa (DCASA). That code was later amended and sent out to all Debt Counsellors under the header of the NCR. That code however adds many restrictive obligations that most AllProDC members feel contradict the spirit of the National Credit Act. This group of Debt Counsellors have been holding meetings country wide with members and other Debt Counsellors to develop their own code of conduct. The final draft Code has now been completed and the Proposed AllProDC Code of Conduct has been distributed
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NEWS CONT. to all member DC’;s to be signed and returned to the association. A Code of Conduct helps ensure consumer confidence in a member DC and allows the association to take steps should a member not stick to the code. If you approach a Debt Counsellor for assistance ask if they belong to an association and have signed a code of conduct.
DCASA host the NCT at regional meeting. At a recent regional meeting of the Debt Counsellors Association of South Africa (DCASA) in Cape Town a representative from the National Credit Tribunal (NCT) made himself available to explain the benefits of making use of the NCT. The cost of the visit to the region was covered by the NCT themselves and many Debt Counsellors were enthusiastic to try make consent applications after the process was explained. Where a matter has full consent (all parties are happy with the repayment plan) it may be taken to the NCT at a much lower cost and with faster turn-around times rather than to a Magistrates Court. The Tribunal has the power to issue a Court order in this regard.
17.2 documents (to say the consumer qualified for debt review) it seems she did not send them to the consumers creditors. She then moved premises without notifying her consumers or the National Credit Regulator. She had not even paid the small amount of R100 which is the annual renewal fee as a Debt Counsellor to the National Credit Regulator or updated the soon to be defunct www.ncrdebthelp. co.za website which tracks consumer progress through the debt review process. The National Credit Regulator took the matter to the National Credit Tribunal who have ordered not only that her registration as a Debt Counsellor be cancelled but that she also repay the application funds to all her 60 former clients. Other Debt Counsellors have reacted with relief to hear that she will no longer be misrepresenting the industry. Many have offer to assist the effected consumers. If you are experiencing problems with our Debt Counsellor you can contact the NCR or the Debt Counsellors Association of South Africa and complain. Visit sites like www.thedci.co.za to find registered and reliable Debt Counsellors.
NCR helps rescue consumers from bad Debt Counsellor The National Credit Regulator has helped to rescue 60 consumers from Jacqueline Kibogo a Debt Counsellor who was failing to actually help consumers. It seems that in almost all cases former Debt Counsellor Ms Kibogo accepted funds from consumers and only generated 17.1 documents (to say the consumer had applied for debt review). Though she later generated
Petition to stop banks acting in bad faith over 1000 consumers complaining. Over the past few months there has been a high number of termination or 86(10) letters sent out by banks and other creditors who do not want to help consumers and would rather try sue them. This sparked off a consumer petition regarding this matter as well as other conduct seen as “bad faith” on the banks part. The petition has been gaining momentum recently and the number of people who have signed up
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NEWS CONT. is now sitting at around 1330 signatures. If you would like to know more about the petition then head over to: www.gopetition. com/petitions/stop-banks-acting-in-bad-faith. html
Standard Bank Debt Review Department’s Sub Standard behavior Standard Bank ( STD) have continue to show their “support” for the debt review process by sending out over 3500 termination 86(10) letters last month. You will remember that about 6000 people join debt review each month so this means that Standard Bank are trying to kick out a number of people equivalent to more than half of the number of consumers who join up. Shocking! Why terminate participation in a debt review? There could be several reasons. The main legitimate reason would be if the consumer is not paying as per the restructured payment agreement. In this case the Debt Counsellor should make an investigation and if necessary withdraw from the process and send a 17.4 letter to the consumers various creditors (like STD). Some banks have been terminating their participation in the Debt Review process in order to try go after consumers assets. This can be done whether the consumer is paying or not. While greed drives these types of terminations there is little long term benefit to this type of termination. The recent Supreme Court of Appeal ruling on the matter of terminations say that if a Creditor does not participate in the debt review in “good faith” then any “terminated” accounts should be put back into the debt review when the creditor tries to take legal action. In most cases the
Creditor will then have to pay both their own and the consumers legal fees. Even if the bank does manage to get the consumer to roll over and just let them take the asset without a fight the creditor will see a small initial cash income from the sale of the asset but will then struggle to get anything from the consumer for several years until their debt review is over. Even then they may never be able to recover more funds. They will definitely never see the consumer or heir family using there services again. Last month Standard bank sent out a list of the 3500 + consumers whose accounts they wanted to have removed from debt review. By mistake they also happened to attach information about each account including ID numbers account balances and whether the consumer was actually paying or not. Shockingly their own spreadsheet shows that many of the consumers who they were terminating (and will now try take legal action against instead of helping) were actually paying as per the proposal. Others had paid only a few rand short. Others are shown as having granted Court Orders for debt restructuring in place. This really gives consumers a glimpse into the mindset of the creditor.
SEBOLA VS STANDARD BANK
Constitutional Court judgment favors consumers When a creditor gets tired of playing nice, trying to get funds out of a consumer voluntarily, they send out a letter called a Section 129 notice. This letter is a last warning that the creditor is about to send a consumer a summons (much like a section 86(10) letter for consumers under debt review). The next step the creditor
takes is to send a summons and then try get a judgment against the consumer. Armed with a judgment the creditor can try take a portion of the consumers salary or can even try take back the consumers assets which they financed. At each step of this enforcement process, of course, the consumer has a right to appear at
court and object or to ask the court to make a payment plan if necessary. What has been happening to many consumers though, is that creditors have been sending these section 129 notices to the wrong address and then taken legal action against a consumer who is unaware of the legal action. The Constitutional Court have now handed down a ruling in the matter of Sebola vs Standard Bank that could have far-reaching implications for consumers in this regard. The major benefit is that consumers will now be aware of when legal action is about to happen (normally 10 days after issuing this letter). The section 129 notice also encourages consumers to sort out the problem with their creditor. One way the notice by law has to mention is via debt review. Ironically the debt for which the section 129 notice is issued cannot be included in a debt restructuring court order as suggested by a Debt Counsellor to a court. It can be allowed for in the consumers budget section of monthly costs but not in the list of debts that is restructured. It does however allow the consumer to bring the debt up to date and then have that debt included in the debt restructuring if they are able to. Many consumers who are under debt review at the moment have received these section 129 letters... or have they? Now that the Constitutional Court has ruled that these section 129 notices have to be sent via registered mail to the consumer (unless they have specifically chosen another form of delivery) it may be that in recent times most consumers have not legally speaking been sent a section 129 notice. The banks and other creditors will now have to engage in a huge section 129 notice campaign via registered mail. This ruling may present many consumers
with a defense in matters which have begun in court where a section 129 notice was not sent to them via registered mail. It might also have a bearing on matters where a section 86(10) notice was sent to consumers who are under debt review. More than that, a creditor that takes legal action now has to include the proof that the consumer came and fetched the registered letter in the application for a judgement. What this does is ensure that consumers, like Mr. and Mrs. Sebola, actually learn about the possible legal action before it happens. In their case, the notice from the bank went to completely the wrong town. It is now unlikely that such a set of circumstances will be repeated in the future as the consumer will have to actually have received the notice via registered mail. When giving the judgment on the matter Justice Edwin Cameron said that the purpose of the section 129 notice is to “give consumers a last chance before court enforcement procedures drop the guillotine on them”. It feels like a big victory for the consumer after a series of mixed rulings which have recently seen consumers on the back foot. This ruling can be seen as a clear win for consumers though, and will hopefully help consumers take appropriate action when creditors do start to take legal action. If you have received a Section 129 Notice go see a Debt Counsellor for advice on how to remedy your financial situation.
next Debt Review year 5...
The DCM Group get a fresh new look As the Debt Counselling industry itself has gone thorough changes so to have those companies who offer debt review related services. With many companies coming and going over the years, consumers are looking for stable, long lasting brands that can meet their needs. In 2012 the DCM Group and its subsidiary brands have gone through a metamorphosis, the outcome of which is a fresh new look and feel. New branding accompanies this new perspective. While in the past DCM has offered services under a variety of brands it seems that DCM’s acquisition of several different brands resulted in an organisation that was presenting a myriad images and messages to the various target markets which it services. As a result, some consumers where not aware of the range of services which DCM could offer or were confused about who owned these brands. The new branding brings all these various brands under one recognisable parent company, namely DCM. The individual brands and logos have now been incorporated into the DCM Group of Companies with DCM Group as the lead brand. This means that DCM Consumer Assist, DCM Care Premier and DCM Corporate are now sub-brands; and that the NPDA is being the endorsement brand for the whole Group. When describing the ongoing changes in the industry and the performance of the various DCM brands Anton Viljoen CEO of the DCM Group says: “ We look forward to many more exciting times in the years ahead...the DCM Group will grow from strength to strength” DCM are moving forward and are now positioned for even greater growth and success.
DEBT REVIEW: YEAR 5 We take a look at recent industry developments and role players to see how SA is doing as Debt review turns 5 years old this month.
This last year saw the NCR plagued by controversy and staff issues. With the leadership issues still not being sorted out and many senior staff implicated in ...impropriety (investigations will reveal what really happened) it has left the NCR somewhat hamstrung. There still seems to be conflicting stories from the NCR and government regarding who is in charge of the NCR. It seems that parliament is sure they have appointed a new CEO for the NCR and the NCR are not convinced. Either way, this seems to be one of many factors holding the NCR back from reaching its full potential. Recently, the NCR have started to palm off some facets of the industry to other parties such as the Debt Review Advisory Committee and the National Debt Mediation Association. An example is the discontinuation of the www.ncrdebthelp.co.za system which Debt Counsellors use to notify the various Credit Bureaus of a consumers debt review status. The NCR have seemingly handed the project over to the NDMA. This is an issue since neither the NDMA or NCR have indicated when this went out to tender and, who applied or tendered to take over the functionality of the system. It seems the NCR want to move into more of a regulatory position, than trying to drive and protect the industry. This makes sense since they are the National Credit Regulator. The Alliance of Professional Debt
Counsellors (AllProDC) has recently spoken out on the subject saying: â€œwe do not see any positive contribution from the National Credit Regulator and we would encourage a far more active participation.â€? Despite all this, the NCR did manage to get involved in some big court cases (including Sebola v Std at the Constitutional Court) and even managed to stamp down on some naughty credit providers who were up to no good.
The last few months has seen the NCR and NCT trying to clean house and help consumers get away from Debt Counsellors who do not follow the requirements of the National Credit Act. Several DCs have been deregistered (8 thus far out of 2000 registered DCs) and in some cases charges have been pressed for fraud. Debt Counsellors country wide have applauded this action by the NCR as they feel these few bad apples are giving the industry a bad name. One former DC is planning to take his deregistration to the Constitutional Court in order to try have his deregistration by the NCR, NCT and High Court overturned. Over the last few months there has been a large split among DCs, who the NCR are trying to force to
sign a particular code of conduct. The statistics show that less than half of the DCs country wide have been prepared to sign the code as put forward by the NCR. While some are happy with the code many DCs are saying they simply signed because they felt threatened by the NCR not because they actually agreed with the conditions contain in the code. One DC association AllProDC particularly see the proposed NCR code as a way to get debt counsellors to do debt counselling the way the banks want it done and that it contradicts the spirit of the National Credit Act.
It has been a good year for the credit providerâ€™s attorneys. Credit providers have been getting attorneys to oppose many court cases where consumers are trying to make payment arrangements. They have also instructed their attorneys to try get consumers vehicles and homes out of debt review and sold on auction. Though this is often done in bad faith and many times thrown out of court with the creditors having to cover the bills this increased legal action has seen many attorneys firms smiling from ear to ear as they get to invoice their clients regardless. For DCs representing consumers it has been a difficult year. Some attorneys have quit the debt review scene. Some did this responsibly and others... not so much. In some cases DCs and consumers are now suing their former attorneys because of the damage done. Either way the attorneys were busier this year than ever before with more applications and more litigation going on at court.
While there are still one or two problem courts where stubborn magistrates will not allow creditors to lower there own contractual interest rates, the majority of courts seem to be handling debt review matters with more clarity. In the larger cities there are still long delays in getting court dates which often makes life difficult for consumers. Many DCs are now trying to make use of the DCRS computer system to get consent from creditors and then take matters to the National Credit Tribunal instead of to Magistrates Court.
DEBT COUNSELLOR ASSOCIATIONS
The Alliance of Professional Debt Counsellors (AllProDC) was recognised as a Debt Counsellor representative body this year. They join the Debt Counsellors Association of South Africa as the only other DC association country wide. While DCASA has had a code of conduct in place for a while AllProDC have only recently achieved this. Many point to the success of the previously named Concerned Debt Counsellors Forum (which AllProDC later took over) as being inspirational to DCASA in launching their own well supported online forum. Currently there are 4 debt counselling forums online. (One belongs to theDCI -who are not an association - and the other is a digital ghost town) DCASA have warned non paying members that they will be removed as members if they do not bring their accounts up to date. Currently there are less than 100 paid up members of the associations. Their are
just over 2000 debt counsellors country wide (only 8 have been deregistered). The NCR has said they would like to see al DCs belong to an association.
creditors. These programs are linked to the PDAs and help give instructions to the PDA on how to distribute funds. Recently the Credit Technology Association (CTA) adopted an accreditation process to ensure that all active PDA software systems adhere to a minimum requirement in terms of the debt review process. An official letter was then presented at the Debt Review Advisory Committee (DRAC) which help the NCR do their job. The letter from them confirmed that the various PDA software systems all meet the minimum Recently the various PDAs have been under requirements. DRAC accepted the status pressure to integrate a new proposal software update. The following systems are now engine into their systems. The DCRS engine officially accredited: DebtWise, Maximus, Care is the baby of the Banking Association of Premier, Simplicity, CPE system. South Africa and the National Debt Mediation Association. The NDMA paid a lot of money to set up a set of guidelines which generate a proposal to all NDMA member creditors. The repayment amount requirements are high Is bad faith the new norm? but so are the concessions. Some people are The ink had not yet dried on the Supreme Court unhappy with the system calling it the “rich of Appeal (SCA) Collett judgment, when most mans debt counselling” option. All PDAs BASA members started huge campaigns to now have this option for solving consumers send out 86(10)s. Many of these 86(10)’s may debt repayment plans integrated into their even have be automatically generated. The programmes. The next step for all PDAs is to Debt Counselling Association of South Africa ensure that their consumers get monthly (DCASA) have confirmed this saying: “We have statements about payments and projected noticed an increase in terminations. We were balances. This is a result of pressure from informed that many are system-generated after both consumers, DCs and the National Credit expiry of 60 days, and where this is the case, Regulator. this wastes time especially where reasonable proposals are on the table.” The Collett Judgment stated that creditors COULD (under certain circumstances) but did not HAVE to send out an 86(10) ‘we are going to sue you’ letter if they wanted to - even if there was a court case pending to restructure Debt Counsellors use a computer program the consumers debt. The SCA warned however, to help them make proposals to the various that these creditors should expect the court
PAYMENT DISTRIBUTION AGENCIES
SOFTWARE PROVIDERS TO PDA’S
that hears their enforcement would simply put the account back into the debt review court case if they did not participate in the debt review process in good faith. Examples of acting in bad faith would be things like: not sending information to the DC to help make a repayment plan, not sending a consumer a monthly statement, not allocating payments from a Payment Distribution Agency, not responding to proposals etc. It seems however that creditors (mainly the banks where asset finance is involved) are targeting debt review consumer in a strange self defeating form of discrimination by trying to force them out of the cheap collection method, that is, debt review. The reasons are unclear on the surface. Surely the banks Debt Review departments don’t want to be down sized and become redundant and surely the bank doesn’t want to have to pay more to collect funds through some other means? It may be that the banks are unable to claim on some shadowy policies against property funds unless some legal action is at least taken against consumers? Who knows? These bad faith terminations seem to be focused on asset based finance rather than other accounts. This indicates that this may be a targeted discrimination. Most smaller nonBASA creditors have not engaged in these mass terminations and continue to enjoy the benefits of a free collection mechanism (debt review) that ensures monthly repayments. Cathy Foster a Debt Counsellor speaks out about the behavior of one creditor: “One of my clients that I have been handling since last year has had nothing but headaches from MFC. Her debt review ran smooth and payments as per proposal made have been paid up to date. MFC however refused to accept the proposal
and wanted R800 p/m more. As client could definitely not afford this, I declined the offer and gave MFC reasons for this. They however would not budge and neither would I, so it seems that we hit a deadlock on the negotiation. At this point (as we could not come to an agreement). I sent the debt review docs to my attorney and requested that the magistrate decide the outcome of the MFC account. [ED- this is not an uncommon situation] Three weeks before the court date MFC put in an opposition (not towards the amount, but rather a copy and paste opposition) which had absolutely no substance (It didn’t seem to apply to my clients situation).I responded to the affidavit but also questioned the lack of substance and empty accusations. A week before we could send the response MFC issued an 86(10) and terminated the debt review on the basis of non-payment. The client has however paid regularly since the beginning as per my proposal schedule and has not skipped a beat. My attorney and I responded to MFC and provided proof of payment as per schedule, but now MFC is requesting summary judgment. [ED- sadly this is also not an uncommon situation] My client does not have the funding to pay for my attorney in high court, now she will lose the vehicle. She despairs of this kind of behavior and asks: “How do we protect clients from this?” Often times a consumer is too shy to go to High Court and try defend their rights and ask for an 86(11) order to have the legal action cancelled. Other times they are too financially cash strapped to pay someone to go to court for them to do so. Most courts are not granting any summary judgments where the consumer does defend the matter which at least shows the courts are willing to help consumers. However other
consumers are losing their homes and cars because of financial restraints. The banks are then selling these assets for a pittance and will no doubt struggle to collect further funds from consumers for years and years to come. The recent Sebola v Standard Bank victory regarding the service of section 129 notices might also provide some assistance to consumers facing bad faith legal action from these bullies. Clarity on the Section 86(10) ‘we want to sue you letters’ and how they should be served (see NCA Section 168 for the answer) is probably going to come very soon as well. This may supply some further relief for discriminated consumers as well. Standard Bank recently embarrassed itself by sending out an excel spreadsheet that showed a number of debt review paying clients who the bank had decided to try kick out of the process (see the News section). This seems to sadly indicate that they have no intention of participating in debt review in “good faith” (at least not for some of the 3500 people on the list they sent out). Last year Nedbank’s computers sent out numbered 86(10) termination (or we want to sue you) letters in bulk to consumers. They seem to have sent out over 65 000 of these letters. Can that have been done in good faith? Sadly it seems that while most Creditors are co operating with the process the big banks are hypocritically saying they want to help consumers while acting in bad faith in regard to many debt review matters. The recent touting of the VDMS system can also be seen as another BASA attack on debt review. It is good to see that so many courts are making 86(11) orders and even granting the consumers costs against these bad faith terminators. So to the good creditors we say well done! We will do our best to ensure you get your payments
promptly. To those who are just trying to make life difficult for consumers, who are trying to pay them, by persecuting them with 86(10) letters we say... prepare for a tough year of hard fights and costs orders.
Creditors round up FNB
Over the last few months FNB have been allowing their legal representatives to pester consumers who already have debt restructuring court orders and have even gone so far as to try get these orders thrown out. FNB recently told one Debt Counsellor that they refuse to change consumers bond rate as per the Granted Court order saying: “ it is too difficult”.
have been involved with some big court cases due to trying to go after consumers vehicles even though they are involved in debt review. In some cases where consumers have not fought the action Wesbank have managed to repossess and sell vehicles making the consumers lives that much more difficult.
We should all thank Standard Bank for sending Mr. and Mrs. Sebola’s Section 129 letter to the wrong town before going ahead and getting a judgment against them without them knowing. This sparked things off and led to the constitutional Court ruling regarding consumers getting section 129 letters via registered mail from now on. Otherwise STD have had a fun couple of months of wasting many consumers time by sending out section 86(10) we want to sue you letters.
MFC with Nedbank’s take over of MFC there has sadly been a deterioration in responses to proposals and cooperation. Consumers who are making payments still find Nedbank and MFC sometimes trying to take their vehicles and having to fight to keep them. MFC used to have a great reputation for making very reasonable repayment plans with consumers.
ABSA have been receiving a lot of criticism
in regard to not putting granted court orders into effect on their computer system. They say they are unable to receive the 3 page scanned court orders. In some cases where they were able to capture information they accidentally captured the name of the Debt Counsellors involved rather than the consumers. They quickly rectified these cases.
have been accused of producing fake garnishee orders and sending them to consumers. This is currently being investigated.
African Bank has been applauded for an improved attitude toward debt review and are reporting much increased recovery on their bad book as a result of debt review. Credit Provider Code of Conduct Although most of the big roll players have got involved only about half the creditor providers in the country have signed the industry code of conduct for credit providers regarding Debt Counselling.
When the National Debt Mediation Association first made an appearance several years back, it seemed that it’s whole purpose was to divert consumers from the statutory process of debt review into something else. At the time the NDMA even created a set of “rules” or guidelines (very similar to the current DCRS computer system) which presented debt restructuring how they would like to see it. Back then most consumers and Debt Counsellors just ignored the NDMA and they became a small background player in the industry. Last year the NDMA were finally repositioned as a credit provider representative body (Like AllProDC and DCASA are to Debt Counsellors). The last 12 months has seen them come back in a big way with...seemingly the same project as before. It’s new name is Voluntary Debt Mediation, also known as VDMS. The reason why the NDMA say they want to promote this new project is because they feel the statutory debt review process has worked “in some instances” but it is “a flawed process both legally and procedurally”. That’s according to Magauta Mphahlele, chief executive officer of the NDMA. She says: “Even if debt counsellors and credit providers were implementing it with the best of intentions, it would still be a problematic process.” It is interesting to see that she feels some credit providers are not implementing the process with the best of intentions. The NDMA would know as they now have to try sort out problems that consumers as well as DCs have with the various credit providers in their new role as a credit provider representative body. At first the complaints were being handled very quickly but there has recently been a
slow down in turn around times in regard to complaints. The NDMA now feel that their new project (VDMS ) will be a better option than debt review. They have engaged in a media campaign about the proposed project which some DCs have taken offence to since it seems to bad mouth the debt review process and make pie in the sky promises for something that does not exist yet. On other fronts the NDMA have also seemingly been appointed by the National Credit Regulator (NCR) to replace the www. ncrdebthelp.co.za website -which DCs use to update credit bureaus regarding the debt review status of consumers. The NCR have recently let DCs know they are dumping the website. Paul Slot of DCASA has said:” Effective continuation of this service is crucial for Debt Counsellors and Credit Providers and for this reason the cancellation of the service by the NCR was tabled at DRAC [The Debt Review Advisory Committee - they advise the NCR]. The issue was discussed and ... A recommendation was made to DRAC to combine the NCR Debt Help functionality with the proposed Central Data Switch. (The NDMA’s CDS will be an information portal to send documents back and forth between creditors and DCs) ... the Switch will facilitate the DC reporting to the NCR as required in the NCA. Credit Providers also offered to pay for the development. This recommendation was accepted by NCR and DRAC. Neither the NCR or the NDMA have been able to comment and clarify exactly when this was put out to tender or any info along those lines. He says:” DCASA supports this initiative because it will be more effective and reduce
workflow for DC’s and will be controlled by an independent body. DCASA will be actively involved in the specification and development of this solution”. All in all, it has been a big couple of months for the NDMA with more work ahead as they deal with complaints and trying to get creditors to sign the industry code of conduct and cooperate with the proposed VDMS project.
http://twitter.com/Debtfree_DIGI next VDMS...
Voluntary Debt Mediation - What is it? The NDMA are talking about a new alternative to debt review called voluntary debt mediation. We take a brief look at what it is and how the industry have reacted. How will it work? The premise of VDMS is that a credit provider will say to a consumer: “ Hey you are not paying me...you are in trouble. You need to go for voluntary debt mediation”. They will then send a consumer to a co-operative Debt Counsellor who will review the consumers situation and use the NDMA’s DCRS computer program to make a proposal to all the consumers creditors. These creditors (if they belong to the NDMA) will then just agree to the proposal and the consumer can start paying less each month without any danger of being sued by any of their creditors. There would be no need to go to court and get a court order to protect their rights or legalise this agreement as the creditors promise to behave and not to take any legal action against the consumer. Reactions from Debt Counsellors Debt Counsellors seem split on this issue. Some like the National Executive Committee of the Debt Counsellors Association of South Africa say that “ DCASA supports this initiative but on a clear understanding that this project in no way replaces statutory debt review or the rights that consumers have in terms of the NCA.” They say that “DCASA understand that the VDMS proposal will be tested in a pilot project and that the NDMA will select a few Mediators.” The proposed pilot project should run over the next year approximately. DACSA continue saying:” The feedback from members on the proposed VDMS project is
positive although many DC’s are concerned how the selection of Mediators will take place by the NDMA... DCASA supports VDMS in principal but more detail on the pilot is required. There are two main reasons why DCASA supports VDMS. Firstly if successful many consumers will benefit and secondly if successful it will provide DC’s with an alternative product to offer debt stressed consumers. Another Debt Counsellor Association The Alliance of Professional Debt Counsellors (AllProDC) have taken the opposite stance and have said that they as an Association are “not supporting the initiative” as “we believe that it is not giving any statutory protection to any client”. They are not restricting their members from participating in the initiative and believe that it is “their choice to decide whether they want to participate or not”. The feeling from the large number of non affiliated Debt Counsellors in South Africa is either one of resistance to the project or ignorance of it’s existence. Due to the fact that VDMS is so similar so as to be almost identical to voluntary debt review and because of possible conflicts of interest some Debt Counsellors are talking about trying to take the matter to court to get an interdict to stop the project. They say that they would rather see NDMA members co-operate with the existing process of debt review (voluntary or statutory) rather than create a new clone product which offers consumers no legal protection if things go wrong. The NCR and NCT are not in favour of the project saying that it seems to be “another attempt by the banks to avoid regulation”. The NCT have said they are interested in looking into the issue of possible conflicts of interest and deregistration should Debt Counsellors get involved in acting as agents for credit providers.
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Debt Vader A call to arms This month I’m at WAR! With the creditors, the DC Associations and apathetic DCs. I’m not going to fight with the NCR, because we know they couldn’t organize a decent booze up in a brewery let alone an entire credit industry (and the good book says be kind to animals and the infirmed). In the cross hair is the proposed Voluntary Debt Mediation program from The Banking Association of South Africa (BASA) and it’s stooge the National Debt Mediation Association (NDMA).
That the financial distress in the credit consumer market is significant and debt counselling has failed to provide relief. Of course, no mention is made of the billions of rands spent by the banks (who fund the NDMA) obstructing the process or the underhanded tactics employed by them to sabotage the process.
The NDMA claims that consumers are reluctant to take up the process of debt counselling and that’s why its failing. The banks have been running an active smear campaign against VDms debt review for years and now they wonder It is no accident that this sounds more like a why consumers are wary? sexually transmitted disease rather than a solution to our credit industry woes (makes They propose (with a straight face and in all you want to warn consumers to get protection seriousness) that VDMS is intended to: before they attempt VDMS). Seriously though, “proactively filter consumers into the most it is a virus engineered by the creditors to appropriate channel to resolve their form of eradicate debt counselling at its most effective over-indebtness” – The last time I checked this or at the very least to exterminate all of the was why debt counsellors were created. small Debt Counselling firms. “Reduce the cost to credit providers of I recently per chance came across a pursuing the normal product lead collections communication on the web from the NDMA process (via the courts) by having a process to DCs and other stakeholders outlining how that can deal with multiple (secured and they foresee VDMS working. At this point I unsecured) credit agreements and provide a would like to point out that the relationship comprehensive and fair solution for all stake between the NDMA, the major banks and the holders involved” - Why should the cost to DC Associations is so incestuous that it is no creditors even be a factor in this equation? wonder that they have managed to birth this 3 They have forced consumers into hundreds eyed 2 headed monster. of thousands of rands worth of legal costs defending unnecessary legal action, if they just The communiqué highlights the following: participated in the process in good faith they
would reduce costs and get their loans paid at no cost to themselves.
the right consumer for debt review and the correct rules engines and solvency rates Debt Review will have become a boutique solution for the temporarily financially embarrassed wealthy and will be inaccessible to the average South African Consumer. Surely if these credit providers are registered with the NCR their terms and conditions must include upholding the purpose of the NCA (S3). This is merely another attempt to circumvent the NCA.
“Create a strong incentive for participation by consumers by offering a service that is fully endorsed and supported by the industry provided that the consumer operates in good faith” - Who is going to decide whether the consumer acted in good faith? The banks? They are incapable of complying with a court order in good faith, how on earth are they going to recognize it in a consumer? OK, OK, so I am on a rant...Let’s stop and say that the projects goals are actually honourable “Ensure efficient and effective process that and there is no doubt a necessity for change provides a high standard of debt advice by within the industry, however, those changes standardising and enforcing practices, tools should not and cannot be made or regulated and templates agreed by all stakeholders” – solely or even predominantly by the NDMA, They have just let DCs know that they intend to simply because they lack credibility because further regulate the industry to the point were they are funded by the credit providers. It’s they have a strangle hold on debt counselling. a rule of survival that you don’t bite the hand The stakeholders are going to be the same that feeds you. clueless gnats who agreed to this pilot in the first place. We might as well hand them a whip Credit Providers are benefiting from Debt and let them scream “whose your daddy” while Review and should increase their participation they flog us. rather than allow the NDMA to make a fake debt review for consumers. More than that it “Introduce an industry agreed framework offers no statutory protection to consumers which defines eligibility criteria for voluntary when legal action is taken even though they debt mediation thereby ensuring that the have negotiated with their creditors. right type of consumer enter the mediation process” – The NCA is very specific about what Consumer BEWARE: Don’t get VDms, it could over indebtedness is so what other “eligibility itch for years. criteria” is necessary? And who is going to decide who is the right “type of consumer” for VDMS? The bank? That would be the same people to got the consumer into his present financial predicament. Really, they thought this was a good idea, why? By the time they are done with identifying
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The process is so similar to Voluntary Debt Review that you would be forgiven for confusing the two. One major difference is that in VDMS “the creditors” (and here we should probably read “the banks”) get to pick and choose who can be a part of the program. Another difference is that the creditors also seemingly will get to decide which Debt Counsellor (DC) the consumer can use. The obvious questions is; isn’t there going to be a conflict of interests here? The NDMA has identified 3 DC companies to participate in a pilot program to test this system, but has been unable to supply Debtfree with information about whether they intend to include any other firms should this pilot program be successfully implemented. Presently the NDMA have stated that their choice is based on the top 3 users of the NDMA’s Debt Counselling Rules System (DCRS) Engine. Some people mistakenly call this the DCRS “rules”. This is slightly misleading since DCs and consumers do not have to use this system to make debt review proposals to the courts. Option or guidelines might be a better description. In exchange for using the NDMA’s DCRS system the NDMA and more specifically the Banks are offering Debt Counsellors:
A guaranteed source of consumers (they will be providing the work) Upfront consent from the consumer No initial assessment by DC – this will be done by the bank. There could be a problem here, since this contravenes S86(6) of the National Credit Act which states that only a DC can determine whether a consumer appears to be over-indebted. Less legal action since the DC will be doing debt review as the NDMA want it done. In certain relationships, individuals or the general public place their trust and confidence in someone to act in their best interests. When an individual has the responsibility to represent another person—whether as DC, administrator, attorney, executor, government official, or trustee—a clash between professional obligations and personal interests arises if the individual tries to perform that duty while at the same time trying to achieve personal gain. The appearance of a conflict of interest is present if there is a potential for the personal interests of an individual to clash with fiduciary duties, such as when a DC is guaranteed an influx of clients by a credit provider in order for the DC to make an assessment of affordability and restructuring in respect of that credit providers debt obligations. The conflict of
interest may extend so far as to prefer one credit provider over another...say a bank over a micro financer. Further, these DCs are acting as implied agents: that is a person who is authorized to act for another (the agent’s principal) through an apparent authority. The conflict of interest is by its very definition the acquisition of a direct or indirect financial interest in a registrant. In the last Declarator, DC’s were defined as being fiduciaries which means they have an obligation and absolute duty to act for the benefit of the public or a designated individual and these DC’s would effectively be exploiting that relationship for personal pecuniary benefit. A member of a profession who has been involved in a conflict of interest should be subject to disciplinary proceedings before the body that granted permission to practice that profession. Under Section 46(4)(c) of the NCA which deals with the disqualification of natural persons from registration as a DC “ A natural person may not be registered as a debt counsellor if that person is acting as an agent for a person that is engaged in credit provision and or any other activity prescribed by the Minister on the grounds that there is
an inherent conflict of interest between that activity and debt counselling”. Also Section 46(5) says that “the NCR must deregister a registrant if he becomes disqualified in terms of Section 46 at any time after being registered”. It is a pity that the NDMA and its members can’t try implementing the existing Debt Review processes that actually work rather than trying to go back to scratch and start all over again in what members of the National Credit Tribunal are calling “an effort to avoid regulation …… to get around the National Credit Act”. Since this process seems to basically be voluntary debt review (or you could say mediation) it makes sense for DC’s to be involved, but they will need to be careful not to cross the line and begin to act as agents for creditors.
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