Ombud tackles ‘intricate’ debt cases


Of the almost 5 000 disputes resolved by the office of the credit ombud last year, 414 of them related to debt counselling.

The department dealing with debt counselling disputes at the credit ombud’s office is still relatively new. It officially launched in April last year, although it started receiving cases four months prior.

According to the ombud’s annual report for 2011, disputes relating to debt counselling can be escalated to his office only if after 20 days the complaint has not been resolved by the National Debt Mediation Association (NDMA) or the Debt Counsellors’ Association of South Africa (DCASA). The NDMA a credit industry-funded body and DCASA is a debt counselling industry body.

Credit ombud Manie van Schalkwyk says this means that matters that require an in-depth investigation, and urgent matters, where a sale in execution or a repossession is imminent, land up at his office.

The credit ombud found the credit provider at fault in eight percent of debt counselling disputes; the consumer at fault in 19 percent of debt counselling disputes; and debt counsellors at fault in 33 percent of disputes relating to debt counselling.

In 34 percent of debt counselling disputes, the ombud’s office found no party at fault. In such cases “the consumer does not have the means to fulfil any of the requirements to settle the debt in an acceptable time frame, therefore the credit provider has rejected the original offer. The consumer cannot offer more money and cannot fulfil the counter-offer by the credit provider”.

Van Schalkwyk says it is widely accepted that there are numerous challenges with the debt counselling process.

The report highlights these:

* Termination (of the debt review process by the creditor) as a result of poor administration or where the debt counsellor does not ensure that the correct process is followed.

* A lack of communication between parties around proposals, counterproposals, the consequences of a credit provider’s rejection of the proposal and termination letters.

* Counterproposals not communicated to the consumer, resulting in termination.

* Failure by the debt counsellor to act on receipt of the termination notice.

* Pitfalls of the debt counselling process – and the risks – not explained to consumers. Reana Steyn, head of department: legal at the ombud’s office, says consumers don’t realise that even if they pay what their debt counsellor suggests they pay, they can still face legal action should the credit provider terminate the debt review process. And that legal action will come at a high cost to them. “Consumers need to be actively involved in their financial affairs and not hand over all responsibility to their debt counsellor.”

* The effect of a reduced monthly instalment not explained to consumers, and the resultant arrears and additional interest and costs come as a shock.

* Consumers’ failure to notify credit providers of a change of address – and as a result not receiving termination letters, Section 129 notices or summonses.

* Consumers wait too long before they attempt to negotiate with creditors. Matters are referred to DCASA, the NDMA and ombud at a very late stage.

“There is a big misconception that everyone qualifies for debt counselling, and neither is debt counselling a ‘miracle cure’ for overindebtedness.”

HOW TO FIND OUT MORE ABOUT A GARNISHEE ORDER

The credit ombud says it is not uncommon for consumers to be caught unawares by a garnishee order – a court order which gives a credit provider the right to attach part of your salary each month to pay off your debt – or to forget about an old debt.

Often consumers have no knowledge of a garnishee order having been issued and sometimes find that their employer or payroll officer is unable to provide them with information.

The ombud says your employer would have received an order from the magistrate’s court, instructing it to pay a certain amount over to a firm of attorneys on a monthly basis. If your employer fails to do so, it will be held in contempt of court and could face legal action, including a warrant of execution against the company’s assets.

“You need to establish from your employer the name of the firm of attorneys and, if possible, a reference number from the court order that was served by the sheriff on your employer. From there you can contact the attorneys to find out more about the judgment: when it was taken, for how much, and very importantly, who is the judgment creditor,” he says.

The ombud says his office has found that some credit providers use independent “tracers” who use dubious tactics on consumers. The tracers visit consumers at their place of work to discuss a payment arrangement. “At the same time, they get the consumer to sign a document which is a consent to a judgment. Sometimes consumers feel forced into signing this document because they are being embarrassed in front of their colleagues. Other times, the content and implications of signing a consent to a judgment is not properly explained to them.”

It is important to take note of what you are signing, the ombud warns. A consent to judgment should be clearly marked as such and it is not possible to later say that you did not read the document you signed.

The ombud says it is important to check the amount of the judgment. If it appears to be excessive, ask for a detailed statement from the attorneys to establish how the amount owing was calculated. If you can’t work it out or have queries, the ombud’s office may be able to help you.

If the attorneys refuse to help you, you can complain to the credit ombud, and if the original debt falls within its jurisdiction, the ombud’s office will help to obtain the documents and get answers to your questions.

Case: unscrupulous agent

The consumer took out a loan of R5 000 from a microlender but soon realised he was not able to pay it back. The credit provider put a garnishee order on his salary for R800 a month from October 2008 to March 2011.

By April 2011 the consumer had paid a total of R24 000, but was told he still owed R6 760. He complained to the credit ombud. After investigating the matter, the credit ombud found that the microlender’s collections agent had acted in contravention of the NCA and was ordered to close the file and write off the outstanding balance.

The credit ombud also issued a letter to the consumer’s salary department, requesting that the garnishee be stopped immediately.

CREDIT OMBUD’S ANNUAL REPORT AT A GLANCE

Complaints and inquiries received: 14 167

Disputes closed by ombud: 4 943

Disputes resolved in favour of consumers: 53%

Average days to resolve a dispute: 41

Complaints/inquiries by category

Default listing: 22.22%

Against credit provider: 20.50%

Credit profile request: 15.61%

Judgment: 13.46%

Inquiry: 5.33%

Debt counselling: 3.92%

Garnishee order: 3.90%

Other: 3.42%

Administration: 3.07%

Identity theft: 2.73%

Payment profile: 2.27%

Against debt counsellor: 1.93%

Prescription of debt: 1.07%

Credit application declined: 0.32%

Against credit bureau: 0.25%

CONTACT

The Credit Ombud is Manie van Schalkwyk

Call centre: 0861 662 837

Telephone: 011 781 6431

Fax: 086 674 7414

Post: Post Suite 123, Private Bag X10015, Randburg, 2125

Email: [email protected]

Website: www.creditombud.org.za


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