Many consumers commit themselves to debt review only to get cold feet several months later. For some, finding themselves cut off from credit lines is just too stressful, while others find their financial situation may have already improved.
A recent court ruling provided clarity around exactly how and when an individual may exit debt review. It is important to first understand how debt review works.
When you apply to a debt counsellor for debt review, they issue form 17.1(b) which immediately protects you from any further legal action by your creditors. On receipt of the form 17.1(b), credit providers must provide a certificate of balance within five business days and the debt counsellor then undertakes an assessment to see whether you are overindebted.
For the debt counsellor to determine if you are overindebted, they must find that you are unable to meet all your credit obligations as they currently stand. Once this assessment is completed, the debt counsellor must issue form 17.2 (b) within ten business days after receipt of the certificate of balance. This includes a repayment plan which could include interest rate concessions from your creditors. Although this agreement still requires a court approval, the consumer can start the new repayment schedule as advised by the debt counsellor. All credit bureaus are notified, and you are effectively under debt review.
The next step is to apply to the Magistrates Court and the magistrate declares the consumer overindebted. New amendments to the National Credit Act now also allow the magistrate to lower the interest rate charged by the creditors even if the creditors did not agree to this in the debt counsellor’s original proposal.
Scenario One: Under debt review but no court order
If you have applied for debt review and the debt counsellor has issued form 17.1(b), you can still cancel the process. You inform the debt counsellor that you do not wish to proceed. Be aware that creditors can immediately act against you, if you are in arrears with contractual repayments, as you are no longer protected.
Once form 17.2(b) has been issued, you are under debt review, but a magistrate has not yet issued a court order. In this case, if by the time your application reaches court your financial circumstances have changed, then you can provide this information in the court application. The magistrate will conduct a hearing and if in agreement the magistrate can reject the recommendation which means that they agree that you are no longer over-indebted, and this terminates the debt review.
Note that you would have to prove to the magistrate that you are no longer overindebted and are up to date with all payments. The magistrate will not end debt review just because you no longer want to participate. Remember that you have had the benefit of legal protection up to this point so make sure any contractual arrears are up to date, as your creditors can take legal action once that protection is removed. If the magistrate believes you are still over-indebted, they will issue the court order.
Scenario Two: Exiting debt review after a court order has been issued
The recent court ruling found that no court can put aside the debt-review order until all the conditions are satisfied – namely that all your debts, apart from your mortgage, are settled as per the court order. This means even if your financial circumstances have changed, you will not be able to exit debt review.
The only way to exit debt review in this case is to accelerate all your debt repayments and settle them as quickly as possible. This could be advantageous if you received an interest-rate concession in the agreement as you would be able to settle your debts sooner than if you were not under debt review.
Frequently Asked Questions
I was tricked into debt review. I received a call saying they could help me with a consolidation, but I only realised afterwards that I was put under debt review.
Be aware of what you are signing or agreeing to as this tactic is being used by less scrupulous debt counsellors. They use terms like “consolidation” rather than “debt review”.
If the debt counsellor has only issued form 17.1(b) then you have the right to tell them to stop the process. You can also lodge a complaint with the National Credit Regulator. If form 17.2(b) has been issued, then you still have the opportunity to argue your case with the magistrate. Remember, however, that the magistrate could still find you over-indebted.
You do have the option to switch to another debt counsellor and the receiving debt counsellor will have to continue with the process from that point forward. “Consumers who have not consented to be placed under debt review can lodge a complaint with the NCR,” says Nthupang Magolego , senior legal adviser at the NCR. “The NCR will investigate the issue, and if the evidence indeed supports the consumer’s contention, the debt counsellor will be instructed to remove the consumer from debt review, and in addition appropriate action will be taken against the responsible debt counsellor.”
I entered debt review but have subsequently made arrangements with my creditors/my financial position has improved.
Credit providers do not like customers going under debt review as they are often required to provide interest-rate concessions. In many cases when creditors receive notification from a debt counsellor that a customer is going under debt review, they may contact the customer to make arrangements.
If form 17.2(b) has not been issued you can ask your debt counsellor to release you, but make sure you are not in arrears on any credit agreement as your legal protection would be removed. If form 17.2(b) has been issued, you can take this new information to the courts.
The same applies if your financial circumstances have improved. “If their financial situation has improved it is advisable to share this with the debt counsellors and for the debt counsellor to make a recommendation of not over-indebted. The magistrate is then more likely to agree,” says Paul Slot of the Debt Counsellors Association of South Africa.
It is important to understand that if you make arrangements with creditors and form 17.2(b) has been issued you will remain under debt review until the court hearing. Remember you may lose the concessions approved by creditors and if you are not up to date with all debt repayments you may expect legal action from creditors.
If you feel that your debt counsellor is delaying the court hearing, you can always move to another debt counsellor. Some fees may apply.
I have been under debt review for a few years and am in a position now to resume my original credit agreement.
Once a court order has been issued you have no option but to settle your outstanding debts as per the court order. You can, however, pay off those debts as quickly as you want, so speak to your debt counsellor for a new repayment plan.
How do I know if a court order has been issued?
According to Slot, the debt review application must be set down within 60 business days at court. However, the actual hearing date depends on the court roll, and it can take between two and six months for the hearing to take place.
Slots says the consumer will also be asked to sign a confirmatory application. If the consumer delays doing this and the matter is not set down at court within 60 days, the credit providers could terminate the agreement and take legal action.
Your debt counsellor should inform you of your court application and outcome. It is very important to keep in contact with your debt counsellor to understand the status of your application. A debt counsellor should also give you a copy of the court order. If you are not receiving the service, you can move to another debt counsellor and lodge a complaint with the NCR.
I have paid off all my debts, but my debt counsellor will not issue a clearance certificate.
If a debt counsellor decides not to issue or fails to issue a clearance certificate, the consumer may apply to the National Consumer Tribunal to review that decision. If the Tribunal is satisfied that the consumer is entitled to the certificate, the Tribunal may order the debt counsellor to issue a clearance certificate to the consumer.
Within seven days after the issuance of the clearance certificate, the debt counsellor must file a certified copy of the certificate with the national register established in terms of the section 69 of this Act, and with all registered credit bureaus.
If the debt counsellor fails to file a certified copy of the clearance certificate, the consumer may file a certified copy of the certificate with the National Credit Regulator and lodge a complaint with the National Credit Regulator against the debt counsellor.
Who to contact
To lodge a complaint about a debt counsellor you need to send the complaint to the National Credit Regulator at email@example.com or fax : 087 234 7789.
This article first appeared in City Press.