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DEBT REVIEW – AN ATTORNEY’S PERSPECTIVE

It comes as no surprise that in our current economic climate, more and more people are facing challenges with meeting their monthly debt obligations.

Debt review was introduced by the National Credit Act to provide relief and assistance to those suffering the consequences of being over-indebted.

The debt review process is a legal one, and legal practitioners, as officers of the court, have the responsibility to ensure that the legal process is correctly followed whilst protecting the interests of Debt Counsellors, consumers, and credit providers alike.

However, the reality of the court system often poses challenges when it comes to finalising applications and obtaining granted debt restructuring orders.

DIFFERENT REQUIREMENTS AT DIFFERENT COURTS

In Gauteng alone, there are approximately 35 district courts where debt review applications are heard. Lack of uniformity across the courts is a significant obstacle that attorneys face when it comes to presiding officers interpreting the Act and relevant case law when hearing debt review applications.

This inconsistency places attorneys, as well as Debt Counsellors, under an unnecessary administrative burden as potential court queries need to be anticipated according to each court’s specific prerequisites and solved before the court appearance.

For example, magistrates often require updated documentation such as payslips and proof of residence (the age of such documentation varies from court to court), information regarding spousal contribution to the household, justification for items listed in the Debt Counsellor’s revised budget, justification for allowing consumers to keep certain assets such as motor vehicles, and even specific averments to be addressed in the debt counsellor’s founding affidavit.

CHANGES & DIFFERENT INTERPRETATIONS

Debt review has an extremely complex relationship with the courts because the National Credit Act is still relatively new, and interpretation of the process is ever-changing.

In the past, consumers and Debt Counsellors were sometimes requested to appear personally in certain courts to give evidence. This was not only inconvenient but also unnecessary.

Fortunately, declaratory orders have been sought in the High Court to give more guidance and uniformity to the process, and this practice has for the most part been phased out in most courts, albeit not all.

Although declaratory orders have been of great assistance to those practising in the debt review sphere of law, the directives given therein are often subject to different interpretations between the courts and this results in the lack of standardisation of the process across the board remaining a problem.

CHALLENGES

Amongst others, additional common problems include attorneys not receiving necessary documentation on time – this could be due to a number of reasons, but results in documentation not being filed within the specified time periods as required by the court rules.

It also happens that even if documentation is received in time, unfortunately, due to the courts often being understaffed, files are frequently misplaced, and original documents are lost, resulting in unnecessary postponements.

In addition, court dates are often only available months in advance due to the court rolls being too full to accommodate the applications sooner, whereas in the past a great deal more applications could be placed on the roll.

This leads to documentation again becoming outdated by the time the next court date arrives, resulting in endless postponements and wasted costs.

SORRY, NOT TODAY

Furthermore, it is becoming more and more prevalent that matters do not appear on the court roll on the specified appearance date due to court files getting lost, which causes frustration and time wasted due to having to look for the files at court.

Nowadays, many courts impose a limit on how many applications may be placed on the roll per firm, per day, to alleviate the burden of the roll on the courts that are often overextended.

This adds further pressure on attorneys and debt counsellors to ensure that the debt review applications conform to each court’s requirements to guarantee that restructuring orders are granted at the first court appearance so as not to clog the court rolls even further.

The situation is further exasperated if one or more of the credit providers decide to oppose an application for whatever reason, because the matter will have to be postponed for settlement negotiations if the matter cannot be settled before the first court appearance (although it often happens that matters are settled the day before, or on the morning of the court appearance at the latest).

CONSUMERS CAN DO THEIR PART

With the threat of postponements and extra costs in mind, it is vital to always provide your Debt Counsellor with all requested documentation as soon as possible. This may mean that you are asked to depose a number of affidavits and give a great deal of extra information to your Debt Counsellor than you expected.

Even though this may be extremely inconvenient and time consuming, your Debt Counsellor is acting in your best interests and this information will be needed to answer queries raised by the court. If these documents are filed in time, unnecessary postponements and costs will be prevented, resulting in your matter being finalised sooner.

It is also very important to read through all affidavits and documentation sent to you that you are required to sign. A reputable Debt Counsellor will ensure that you understand the process and will make sure you have peace of mind, so definitely do your research before choosing a Debt Counsellor to assist you.

DON'T GIVE UP

Court orders restructuring consumer’s debts are vital to the success of debt review. Consumers desperately need these court orders for peace of mind and to legally adjust their obligations.

With all these ongoing challenges and the differences found at all the various courts across the country, how can attorneys and Debt Counsellors get debt review applications granted?

Patience is key in debt review, so persevere, bearing in mind that the process is designed to result in a workable solution… if you don’t give up!

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