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 dccomplaints@ncr.org.za or fax : 087 234 7789.
For information about the debt counselling process you can contact the Debt Counsellors Association of South Africa via email at mailto:dcasa@dcasa.co.za or tel: 0861 432272.
This article first appeared in City Press.
Hi Maya, my partner just applied for debt review, this morning she received a 17.1 form, she has not signed and she wants to withdraw the process.
We want to know if she cancels at this early stage, will she have a debt review flag?
Technically the 17.1 form means creditors have been informed and statements have been requested.
Hi. I was separated from my husband 13yrs..we are now divorced. Uv learnt that he went under debt rewview. I didn’t agree I didn’t sign this was done with put my knowledge. What can I do
The counsellor was required to get your permission. Have you contacted the debt counsellor?
HI
What if i cant get hold of the debt company that put me under debt review?
read this https://mayaonmoney.co.za/2020/05/what-to-do-if-your-debt-counsellor-goes-awol/
is it possible to cancell my process before signinng any document,but only to find out that that have sent a notification to my creditors
if you have not signed 17.2 (b) then they should be able to cancel it
Hi Maya
I started being on debt review back in 2016. I have never missed payments with hyphen however my outstanding balance seems not to decrease. I was not made aware by my debt counselor that I will be on debt review for a period of 15 years. I just saw my repayment plan and saw that my terms were extended to 194 months. As it stands I no longer have a car and cannot purchase one for which i need it for work as it is a requirement. I was hoping to be off debt review by 2022 and was very disappointed to see 194 months extension. How do i change this or how can i be helped as my debt counselors contacts are no longer in use.
hi maya
i entered into an agreement with debt review but after realise that i can pay my debts my self and i cancelled it even before any payments now when i need financial help from banks they tell me that im still under debt review what can i do now please help
You have to find out where it was in the process – it is explained in the article
HI
I was in a debt review and i have existed before time in August 2018. My DC submitted documents to all bureaus and my credit profiles were updated as such. But now my challenge is that all banks are adamant to give me financial assistance stating that i am under debt counselling. So what must i do to clear my name as a person who is no longer under debt counselling?
Regards
Abram
hi maya
i entered into an agreement with debt review but after realise that i can pay my debts my self and cancelled it even before any payments now when i need financial help from banks they tell me that im still under debt review what can i do now please help
You need to find out where you were in the process
Hi we only have a car amd home loam both at MFC under debt review. Our income have drastivally increased over the last 5 years. Van we go off debt review with just those 2 accounts left?
You can speak to your debt counsellor. You can exit if you only have a home loan, but it does not always apply to car finance so you need to check.
Hi Maya
I have recently agreed on debt review because i was told that my repayments will be reduced so I can get a sigh of relief but it is only the slight amount and the situation still the same. Worse i dont have any access to credit facilities anymore. I need to withdraw, it is only for a month. Please advise if it is possible and upon withdrawal I can be able to access credits
It depends where you are in the process – the article does explain the steps
I applied for debt review and within one year, creditors started calling me for arrangements. I could not find my debt counselor and made arrangements to pay directly. Unfortunately, standard bank blacklisted me even after updating my loan with them. I have paid most of my accounts except for the mortgage and a loan. How was the bank able to blacklist while under debt review?
If your debt counsellor absconded and payments were not made to the bank, the protection of debt review falls away. Sadly there have been some very unscrupulous debt counsellors…
Hi maya
Is it possible to cancel a debt review the following day after signing form 16?
Not sure which form 16 is?
Hi Maya, I joined debt review after I was tricked that they will consolidate my debt and I will pay them back with a lower installment, I ony found out later that it was not true, my installment increased monthly and also the repayable months were also increased by 7months,so I didn’t receive the help that I hoped for and now I can pay my installments
You would have to agree to the proposal. It also has to be approved by the courts – so you could argue that this arrangement puts you in a worse situation.
You can lodge a complaint with the NCR – but that does take time. Alternatively you can switch debt counsellors to someone who can actually improve your situation
If you have been flagged on the national loans database as being under debt review, without applying, then you can make a complaint to the National Credit Regulator.
If you are able to pay your loans, then the quickest solution might be to settle the loans that are listed on the debt review application, and then you can get a clearance certificate and get the flag removed.
If your debt counsellor has not had a court order granted, it is possible for the court to declare you not over-indebted, and then the flag can be removed. But, there will be legal fees for this process.
Hi there, the Form 16 is the application for debt review. You can cancel after signing it. However, if the debt counsellor has performed their assessment and issued the Form 17.2, then you will be under debt review. It normally takes 5 days to perform the assessment.
Hi Maya,
I was under debt review, over 8 years ago, and my debt counselor noted just over 5 years ago by email that they were going to remove themselves from the process as I was no longer able to commit to the process due to getting a divorce and being wiped out financially.
I have been working abroad for a little over 5 years now and recently looked into my credit history in South Africa and was very surprised and shocked to find out that it appears as though the debt counselor never gave notice to the bureaus that they had removed themselves. I have tried to make contact with them but it would appear that they are no longer in business. I need to have my credit record updated and fixed as a matter of priority as in the not too distant future I would like to apply for a mortgage, in South Africa, as I will need to purchase a home for my mother to live in.
What do I do in this circumstance?
Any guidance would be greatly appreciated.
Kind regards
Shaun
Hi Shaun,
The DC removing or withdrawing themselves does not change your status with the NCR or the credit bureaux.
A DC needs to issue a clearance certificate and inform the bureaux and the NCR that you have settled all the obligations that were on your debt review plan. Once all the debts are settled then the DC can issue the clearance certificate.
Given the passage of time, your debts may have prescribed, as the prescription period for debt is 3 years. Although some credit providers may have secured a judgment against you. The judgement will have to be settled before the clearance certificate can be issued.
Regards
David
Meerkat
Thank you for the article and posting the questions from different people. It is helpful indeed.