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Marie Kruger
Administrator
Posts: 48

Has anyone done a sucksessfull reckless credit application.  A DC is required by the act to investigate reckless credit but it seems to be not an easy prosess.  Documentation is requested from credit providers but they dont sent it and in doing so you can not alledge reckless credit and do an application to court.  Should one do a seperate application for reckless credit from the normal debt review application and should it be one application.  

March 13, 2013 at 6:22 AM Flag Quote & Reply

Zak (Editor of Debtfree DIGI)
Member
Posts: 298

Yes this process is expensive and a long struggle that will see little benefit to the DC but can help the consumer...


One application can be brought.

Remember the DC does not have to prove reckless credit just aver that it happened based on the info they have available the decission is up to the court and the respondent creditor to prove did not happen.

March 14, 2013 at 2:47 AM Flag Quote & Reply

Marie Kruger
Administrator
Posts: 48

Thank you Zack

March 14, 2013 at 3:02 AM Flag Quote & Reply

George Smith
Member
Posts: 48

 

Plenty - I specialize in these applications and have found a way to do this

AFRICAN BANK is currently the only one still not complying - but thenthey may be sinking under the load. They indicated that they will submitdocuments within 20 days and if they do not section 86(5) of the NCA becomesapplicable ... DC's act nomino officio(in an official capacity) and if anybody ignores such a persons request(reasonable) it becomes an offence ... criminal offence.. although there is no caserelating to DC's.

Use a Anton Preller application ... this is where you approach theHigh Court as a applicant nomino officioin an Ex parte application.. nonotice is given to the credit provider for an order that the sheriff and you oryour attorney be allowed to collect the documents required ... that means youwalk in with the sheriff plus the order. The application can be heard in thejudges chambers and if he asks why you are appearing tell him the consumer doesnot even have money to buy food, you are nomino officio and the SCA in Nedbankv NCR decided that you are the applicant. Be nice to the judge he is actuallyyour friend.

 

WHAT A PLEASANT SURPRISE FOR MOST OFTHESE CP’s… if he does not comply… go explain to the judge… get locked-upfor contempt and also obstruction of justice (plenty years)… you must have theCEO locked-up

 


--

BProc Uiversity of Pretoria (Non-practicing attorney)

We focus on legal aspects of the National Credit Act

 

Telephone: 031 916 3035 (hearing impaired please email

Email george@georgesmith.co.za

March 14, 2013 at 7:58 AM Flag Quote & Reply

ADRI DE BRUYN
Administrator
Posts: 66

George how do you make money as a dc with reckless credit app??

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March 14, 2013 at 3:39 PM Flag Quote & Reply

Marie Kruger
Administrator
Posts: 48

Thanks George - have you been successfull in the app?  We as DC must investigate reckless credit as part of the assesment but like you say it is just a sturggle te get documentation and that is why i think a lot of DC's dont even bother - little money for a lot of work

March 15, 2013 at 7:28 AM Flag Quote & Reply

George Smith
Member
Posts: 48

I do not make money from Debt Review! In the game to help others any for me to draw a reckless-lending application does not take a long time - the worst is getting the data and drawing the time-line table. What you need to do is keep a few standard paragraphs for your founding statement etc. The attorney you choose must be prepared to do a 'fixed-price' - deal for the 86 application and reckless lending.

You will notice that Nedbank has sent a notice to indicate that they will expodite requests for documents, they got bitten and Capitec is about to be have a few lessons .......

What we need is for the software companies to include a small section where the reckless lending lending info can be input and then produce the 'time-line-table'


--

BProc Uiversity of Pretoria (Non-practicing attorney)

We focus on legal aspects of the National Credit Act

 

Telephone: 031 916 3035 (hearing impaired please email

Email george@georgesmith.co.za

March 16, 2013 at 2:35 AM Flag Quote & Reply

George Smith
Member
Posts: 48

The Anton Piller applications are highly contentious and needs to be used with caution because it infringes on th eright of the credit provider to come and argue which he does not want to supply the documents or that he does not need to supply all the documents required. Then we need to also remeber the 'soft-line' section 86(5).

I have used the application... and will use it again because the credit providers keep acting stupid with regard to the documents needed to assess reckless lending. Industry level agreement do not last and to my knowlege there is not a list of documents. As our clever judges will state, 'it would be inappropraiate to make a definitive list', You may request certain documents and then diiscover the need to obtain more... other documents are 'not available'... take the case where the bank call center agent makes a recorded call to give the consumer a new credit card, the recording is not suffient because the agents script forgot to ask the consumer whether they agree ... to the trms, how can this be possibel. The bank still needs to get an agreement signed... verbal agreements are valid, but difficult to prove and the 'prudent bank' (if there is such a bank???) will require the consmer to signed a written application, completed in the consumers own hand and also a qoute and agreement with the necessary initialling next to important aspects, such as that the 'terms and conditions have been read and undeerstood'... what if the consumer cannot read... the expalnation may be inadequate etc. Nother document which is usually not available is a ITC report at the time of application. The affordability assessment ususally does not take into consideration how much is owed to other institutions. Income and expenditure is also important... understed expenditure and overstted incomes. Credit Providers have been depending on the fact that if the consumer lied , it is a perfect defence against reckless lending. HOWEVER, the credit provider needs to MITIGATE against being reckless by verifying all the information supplied by the consumer, and then not to grant the loan when it is found that the information is not factual.... they will not succeed in the defence.

In the final analysis there is no 'money-to-be-made' from debt counselling - if you are doing this as a attorney where you can get the added legal fees for applications ,,, the courts have not been prepared to give cost orders against the credit providers so there is no real money

--

BProc Uiversity of Pretoria (Non-practicing attorney)

We focus on legal aspects of the National Credit Act

 

Telephone: 031 916 3035 (hearing impaired please email

Email george@georgesmith.co.za

March 17, 2013 at 5:53 AM Flag Quote & Reply

George Smith
Member
Posts: 48

Read this

http://www.iol.co.za/business/personal-finance/banking/reckless-lending-call-to-fine-african-bank-r300m-1.1467063#.UUWTxlePfSg

--

BProc Uiversity of Pretoria (Non-practicing attorney)

We focus on legal aspects of the National Credit Act

 

Telephone: 031 916 3035 (hearing impaired please email

Email george@georgesmith.co.za

March 17, 2013 at 6:00 AM Flag Quote & Reply

George Smith
Member
Posts: 48

THE RECKLESS LENDING APPLICATIONS ARe stARTING TO BITE....

ABSA circular dated to day refers


You must deliver reckless-lending applications to an address

16th Floor

160 Main Street

JHB

ABSA is trying to take cover..... now watch this space !!!!!!


--

BProc Uiversity of Pretoria (Non-practicing attorney)

We focus on legal aspects of the National Credit Act

 

Telephone: 031 916 3035 (hearing impaired please email

Email george@georgesmith.co.za

March 18, 2013 at 10:16 AM Flag Quote & Reply

ADRI DE BRUYN
Administrator
Posts: 66

hi george! yes i saw the email from absa this morning!

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March 19, 2013 at 4:05 AM Flag Quote & Reply

George Smith
Member
Posts: 48

Thank you for all the calls received during this week from members of AllProthe stories coming into my possession can really go a long way to exposingfurther abuse in the financial banking markets... over the years we have beencollecting a mass of evidence with regard to many of the banks and somemicro-lenders... some matters we never took forward but as time goes on we findthat it will become useful to start 'rattling skeletons'.

At the time when we became aware of these matters, we may have thoughtnothing of it but it is growing. Reckless lending applications were neverreally attended to because we really did not know how to go about it but thenwe grew a little and can actually do it quite well.

Now you can participate with the develoment of the application in thefollowing episodes on this forum.....!!!!

There is one cavet  please remeber some of theconsumers applying for debt counselling are not angels ... there areprofessional lenders ..... and they have been playing 'Peter and Paul' for manyyears... where the use one debt to pay the other because they are living beyondtheir means or they had some event which set them back... unemployment andsudden failure of the employers business

On rceiving the COB's - take a spread-sheet and fill the dates andamounts into columns - those loans after 2007 need your specific scrutiny ....YOU CANNOT KNOW WHETHER RECKLES-LENDING HAS TAKEN PLACE UNTILL YOU HVAVE ALLTHE INFORMATION and this is now where we can all join the discussion. What doyou need?

My list:

1. The written, in the hand-writing of the consumer asnd signed, applicationfor credit

2. If this was done telephonically - a certified transcript of thetelephonic discussion.... one thing you need to look out for is whether theconsumer was asked, whether he wants the credit and agrees to pay for the debt.

3. In any event it would always be prudent for the credit provider tohave a copy of the application in the hand-writing of the debtor tomitigate their own risk

4 The name and employee or agent number and where they can be found.Also that the requirements of section 163(1) were met, which includes acertificate of training and the curriculum followed to train the person.Whether this training was done under the auspices of a Sita, which one or theBanking Association (BASA)

5. The consumers salary slip at the time of the application, Look forgarnishee orders = bad credit risk - if a loan was granted under thesecircumstances this is due to the fact that the CP may not have mitigated therisk of loss and therefore acted recklessly

6. The credit bureau report drawn from one of the bureau. Look forband payment and then apply the same argument as in 5 above. We will lookat mitigating their own risk of loss and reckless-lending and also theliability of directors under these circumstances as a separate subject.

7, The affordability assessment- especially over statement of income and understatement of expenditure. Thisis the proverbial 'miracle survival of a family of 5 in a urban area on R850per month

Your comments and then we go on with this very important aspect of your work

 

 

 

--

BProc Uiversity of Pretoria (Non-practicing attorney)

We focus on legal aspects of the National Credit Act

 

Telephone: 031 916 3035 (hearing impaired please email

Email george@georgesmith.co.za

March 19, 2013 at 4:47 AM Flag Quote & Reply

Renee
Member
Posts: 94

George Smith at March 19, 2013 at 4:47 AM

Thank you for all the calls received during this week from members of AllProthe stories coming into my possession can really go a long way to exposingfurther abuse in the financial banking markets... over the years we have beencollecting a mass of evidence with regard to many of the banks and somemicro-lenders... some matters we never took forward but as time goes on we findthat it will become useful to start 'rattling skeletons'.

At the time when we became aware of these matters, we may have thoughtnothing of it but it is growing. Reckless lending applications were neverreally attended to because we really did not know how to go about it but thenwe grew a little and can actually do it quite well.

Now you can participate with the develoment of the application in thefollowing episodes on this forum.....!!!!

There is one cavet  please remeber some of theconsumers applying for debt counselling are not angels ... there areprofessional lenders ..... and they have been playing 'Peter and Paul' for manyyears... where the use one debt to pay the other because they are living beyondtheir means or they had some event which set them back... unemployment andsudden failure of the employers business

On rceiving the COB's - take a spread-sheet and fill the dates andamounts into columns - those loans after 2007 need your specific scrutiny ....YOU CANNOT KNOW WHETHER RECKLES-LENDING HAS TAKEN PLACE UNTILL YOU HVAVE ALLTHE INFORMATION and this is now where we can all join the discussion. What doyou need?

My list:

1. The written, in the hand-writing of the consumer asnd signed, applicationfor credit

2. If this was done telephonically - a certified transcript of thetelephonic discussion.... one thing you need to look out for is whether theconsumer was asked, whether he wants the credit and agrees to pay for the debt.

3. In any event it would always be prudent for the credit provider tohave a copy of the application in the hand-writing of the debtor tomitigate their own risk

4 The name and employee or agent number and where they can be found.Also that the requirements of section 163(1) were met, which includes acertificate of training and the curriculum followed to train the person.Whether this training was done under the auspices of a Sita, which one or theBanking Association (BASA)

5. The consumers salary slip at the time of the application, Look forgarnishee orders = bad credit risk - if a loan was granted under thesecircumstances this is due to the fact that the CP may not have mitigated therisk of loss and therefore acted recklessly

6. The credit bureau report drawn from one of the bureau. Look forband payment and then apply the same argument as in 5 above. We will lookat mitigating their own risk of loss and reckless-lending and also theliability of directors under these circumstances as a separate subject.

7, The affordability assessment- especially over statement of income and understatement of expenditure. Thisis the proverbial 'miracle survival of a family of 5 in a urban area on R850per month

Your comments and then we go on with this very important aspect of your work

 

 

 

Hi George, my attorney has a few issues with reckless lending:  eg the consumer took the money and in his opinion that is admission of guilt and should reckless not apply?  What is your take on this?  Also how do you force a creditor to provide the so called original documentation and or phone transcripts without going to court?

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March 26, 2013 at 4:52 AM Flag Quote & Reply

ADRI DE BRUYN
Administrator
Posts: 66

you will have to go to court for an interdict to force them to provide the documents.

--


March 26, 2013 at 5:06 AM Flag Quote & Reply

George Smith
Member
Posts: 48

Renee at March 26, 2013 at 4:52 AM

George Smith at March 19, 2013 at 4:47 AM

Thank you for all the calls received during this week from members of AllProthe stories coming into my possession can really go a long way to exposingfurther abuse in the financial banking markets... over the years we have beencollecting a mass of evidence with regard to many of the banks and somemicro-lenders... some matters we never took forward but as time goes on we findthat it will become useful to start 'rattling skeletons'.

At the time when we became aware of these matters, we may have thoughtnothing of it but it is growing. Reckless lending applications were neverreally attended to because we really did not know how to go about it but thenwe grew a little and can actually do it quite well.

Now you can participate with the develoment of the application in thefollowing episodes on this forum.....!!!!

There is one cavet  please remeber some of theconsumers applying for debt counselling are not angels ... there areprofessional lenders ..... and they have been playing 'Peter and Paul' for manyyears... where the use one debt to pay the other because they are living beyondtheir means or they had some event which set them back... unemployment andsudden failure of the employers business

On rceiving the COB's - take a spread-sheet and fill the dates andamounts into columns - those loans after 2007 need your specific scrutiny ....YOU CANNOT KNOW WHETHER RECKLES-LENDING HAS TAKEN PLACE UNTILL YOU HVAVE ALLTHE INFORMATION and this is now where we can all join the discussion. What doyou need?

My list:

1. The written, in the hand-writing of the consumer asnd signed, applicationfor credit

2. If this was done telephonically - a certified transcript of thetelephonic discussion.... one thing you need to look out for is whether theconsumer was asked, whether he wants the credit and agrees to pay for the debt.

3. In any event it would always be prudent for the credit provider tohave a copy of the application in the hand-writing of the debtor tomitigate their own risk

4 The name and employee or agent number and where they can be found.Also that the requirements of section 163(1) were met, which includes acertificate of training and the curriculum followed to train the person.Whether this training was done under the auspices of a Sita, which one or theBanking Association (BASA)

5. The consumers salary slip at the time of the application, Look forgarnishee orders = bad credit risk - if a loan was granted under thesecircumstances this is due to the fact that the CP may not have mitigated therisk of loss and therefore acted recklessly

6. The credit bureau report drawn from one of the bureau. Look forband payment and then apply the same argument as in 5 above. We will lookat mitigating their own risk of loss and reckless-lending and also theliability of directors under these circumstances as a separate subject.

7, The affordability assessment- especially over statement of income and understatement of expenditure. Thisis the proverbial 'miracle survival of a family of 5 in a urban area on R850per month

Your comments and then we go on with this very important aspect of your work

 

 

 

Hi George, my attorney has a few issues with reckless lending:  eg the consumer took the money and in his opinion that is admission of guilt and should reckless not apply?  What is your take on this?  Also how do you force a creditor to provide the so called original documentation and or phone transcripts without going to court?

You do need to get this through a court order... the order will usually be granted where you indicate that these documents are necessary to conduct the investigation and perform your duties as a debt counsellor. In the actual application to have the debt declared reckless reference to this application must be made.


--

BProc Uiversity of Pretoria (Non-practicing attorney)

We focus on legal aspects of the National Credit Act

 

Telephone: 031 916 3035 (hearing impaired please email

Email george@georgesmith.co.za

March 26, 2013 at 5:47 AM Flag Quote & Reply

George Smith
Member
Posts: 48

There are thousands of cases of reckless lending which havenever been addressed. Now that DC's are becoming assertive and demanding documeents etc ...the banks are going to jump on us ....just on this issue a bank can go bust because once you have the reckless lending order you need to also send it to the NCR and thay will need to investigate and refer to the NCT.

The banks will fail if the full force of their conduct is revealed and the government (SouthAfrica) cannot afford any bank from failing as it will put SA into the EU situation.... although we are in the same position for many other reasons but being bolstered by inflow of capital into 'high-risk' countries

The NCA or parts thereof will have to be withdrawn as soon as the full impact of reckless lending becomes apparent and these orders flow through the courts... remember you can go back to any debt review case and revive the reckless lending aspect and after haveing had the loans declared reckless to apply for the consumer to be brought back under debt review.

Once you have brought consumer back under debt review ..... and let's say they lost their home or other assets ..... claim damages??

Remeber it is not just the job of the DC to find reckless lending... the CP's also need to find it in there own systems and then report it to the NCR... a form of confession in the hope that the the fine/s will not be too big. By hiding reckless lending they are making thenselves guilty of greater offnces, incuding possible fraud and financial services offences where the Reserve Bank and Treasury will have to intervene

--

BProc Uiversity of Pretoria (Non-practicing attorney)

We focus on legal aspects of the National Credit Act

 

Telephone: 031 916 3035 (hearing impaired please email

Email george@georgesmith.co.za

March 26, 2013 at 6:05 AM Flag Quote & Reply

Alan Manshon
Administrator
Posts: 86

wow George! u need to seriously consider writing a reckless credit guide. reading this thread has already assisted me with a matter i'm dealing with now. thank you.

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March 26, 2013 at 4:45 PM Flag Quote & Reply

Zak (Editor of Debtfree DIGI)
Member
Posts: 298

You do not need all the "evidence" .

You can based on what evidence you have make the averment and let the creditor provide the documents at court...If the creditors are lazy  and dont send docs then you simply have less to work with but the signs are often there . eg a repeat loan from the same creditor, garnishee orders on the consumers salary at the time etc.

................................................................................................................................................

Also just on a note a DC does not HAVE to investigate for reckless credit unless asked to do so by the consumer. I know that sounds lazy but as per the NCA thats how it works. 

Many consumers feel happy to pay back credit recklessly granted since they did get to use the money and got the benefit of it.

--

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March 28, 2013 at 2:47 AM Flag Quote & Reply

George Smith
Member
Posts: 48

In many instances if the reckless credit is removed then the consumer can make payments - if you leave the rckless lending then the proposals do not make sense and even the magistrates will not grant the orders.

There are many instnces where the consumer was turned down for debt review because reckless lending and 'documentary evidence' is not being investigated.

March 28, 2013 at 5:09 AM Flag Quote & Reply

George Smith
Member
Posts: 48

I have a large number of debt reviews dating back to 2008 that are now under review - the consumers do not know what reckless lending is when asked. We are now taking these cases and reviewing them - no charge to see why the people were not helped or why the matter was terminated and the consumer is being garnished.... we discover that the debt counsellor was at fault, 'lazy'. In many instances consumers are now paying prescribed debt.

One case in hand. The consumer loaned money in 2002, the credit provider had a consent to judgement signed in 2003 and then in 2010 took default judgement and then garnisheed the consumer with R500 per month. The cost of  R3000 loan had escalated to R24000. When the consumer applied for debt review the DC did not even look at this matter.

The retorical question will be was the DC supposed to check for pescription? If they had done this the consumer would have save a lot of agony, being out-of-pocket for about R18000?

The idea is to help DC's who want to offer better services to do so. In the process the consumer will gain confidence in debt counselling and only pay what is due.

March 28, 2013 at 5:30 AM Flag Quote & Reply

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