How to use debt prescription in your defence

Brenda Fisher wanted to know how to go about having her debt prescribed. She asked: “I have not received statements for more than three years and no calls from debt collecting companies. How do I go about doing this?”

It is an interesting question and this is what the Credit Information Ombudsman said.

“Ms Fisher should get a copy of her statement to make sure she has not paid any money in the past three years.

“She should also ensure she has not in the last three years acknowledged the debt in any way and that no summons was served on her at any point in those three years.”

She should also check that no judgment was issued for the debt, the ombudsman said.

Ms Fisher would then have to write a letter to the credit provider giving them her current address, informing them that she would like to raise prescription as a defence and the credit provider must acknowledge receipt of the letter

“Raising the defence of prescription is her responsibility. If Ms Fisher doesn’t do anything there is the risk the credit provider can take legal action against her at her old address, if it has changed and she may get a judgment which will be valid for 30 years,” the ombudsman said.

Ms Fisher can contact the credit provider but it is very important she does not admit to the debt or promise to pay. She should ask the credit provider what they intend doing about the old debt.

If her address has changed she should notify them in writing, and make sure she gets an acknowledgement.

“A credit provider may continue to collect on an outstanding bill, but, if during the last three years the credit provider has received no payment, and if Ms Fisher did not admit to the debt, and she has not received a summons initiating legal proceedings, then she has a valid defence of prescription,” the ombudsman explained. In legal terms, prescription is a special plea, but it is easier to refer to it as a defence against a claim.

So even though the credit provider can collect on this outstanding amount, once they have issued summons she can go to court and offer prescription as a defence.

The credit provider would not be able to obtain a judgment against her and without a judgment they cannot collect the debt.

The ombudsman said it is important that Ms Fisher gives the credit provider and their collecting agents her address, so that if they serve a summons on her, she gets it.

“If Ms Fisher does not respond to the summons, the credit provider will obtain a default judgment against her, which will be on her credit records for the next five years, and the judgment itself is valid for 30 years.

“It is, therefore, very important that she gets the summons and then defends it by raising prescription as a special plea.”

Visit www.creditombud,org.za or email info@creditombud.org.za or call 0861 662837 for help.

Scammed

Stephen Cloete

MapStudio

Review: Brian Joss

Stephen Cloete, who has been an entertainer, motivational speaker and magician for more than 40 years, including stints on cruise liners, unpacks how magic tricks and psychological techniques are used to tempt you into falling for Ponzi schemes, documentary and internet fraud as well as how corporations make you think their product is bigger and better than the competition’s.

Cloete supplies case studies, including the Hoover debacle. The well-known vacuum cleaner company was forced to close its UK operation after a promotion went wrong. Some of the biggest names in business, Nestle, Procter & Gamble and Coca-Cola have been sued for making misleading claims about their products.

Cloete examines psychics, mediums and exposes their techniques. You can also learn simple tricks that will make you a sought-after guest at parties and make you popular in pubs where you can score lots of free drinks. Or unpopular. One of the tricks is the “bottle blow”, others are the “race to one hundred”, “the thirsty games” and “how to win any bet”.

Cloete gives advice on how to protect your kids and elderly parents from internet fraud and con artists. Scammed is an entertaining book that will keep you amused and interested for hours. It also has some valuable advice on avoiding scams.