INSIDER SECRETS TO IMPROVE YOUR CREDIT SCORE

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1 INSIDER SECRETS TO IMPROVE YOUR CREDIT SCORE 1 1

2 ABOUT THIS GUIDE This guide walks you step by step when it comes to clearing your credit record. There is absolutely no reason why the average man in the street cannot tackle this task but most of us think that we need to hire an attorney to help us. The steps in this book are laid out in simple terms that anyone can follow all you will need is some time. Follow each step carefully and you will be well on your way to having a clear credit record. WHAT THIS GUIDE WILL TEACH YOU: How your credit score is calculated and what you can do to improve it Which accounts must be paid, and which are unnecessary to pay Dealing with creditors and their debt collection agents Getting a copy of your own credit record and understanding the information on it Fixing Errors on your credit record Getting rid of adverse listings such as defaults How to deal with a court ordered judgment from a magistrate and have it removed Under what circumstances you are able to have an administration order rescinded How to deal with a High Court judgment on your credit history What to do before going to pay off accounts Your rights as they pertain to getting an account statement How to handle the situation if your creditor will not provide an account statement How long in total the adverse information is going to show on your credit history Your rights in terms of applying for new credit Steps to take if you are in arrears when it comes to vehicle or bond payments The facts about being someone else s surety Why your application for credit was not successful How to cancel a credit contract before its expiration date Dealing with the Sheriff of the Court The credit limit offered is less than what you asked for; Your existing limit is decreased;

3 DISCLAIMER All possible care has been taken to ensure that the information contained in this book is completely factually correct and follows the letter of the South African law. The writers will not, however, be in any way responsible for any losses that may occur to any parties as a result of the use of this book or the resources it contains. What should be taken into consideration is that the law itself is a dynamic entity and subject to interpretation on a case to case basis. This is a general guide and it may be necessary, in more complex cases to seek further assistance. ACKNOWLEDGEMENTS The DIY Credit Repair Toolkit Nicky Campbell, Attorney, BA. LLB (Rhodes) MPhil (Cambridge)

4 CONTENTS 1. Am I entitled to apply for credit? 1 2. Why was my application for credit unsuccessful? 1 3. Is it my right to know why my application was unsuccessful? 2 4. What if I have no credit history? 2 5. What do you mean by credit record? 2 6. Can I get a copy? 3 7. Which credit bureau should I contact? 3 8. May I be charged for my credit record? 3 9. How do they work out my credit score and how can I make it better? What information is on the report? Can they put down everything? Can anyone just go and access this information? What if there is an error on the report? What procedure needs to be followed if I want to lodge a dispute? What to do if not happy with the outcome? What will impact on an application for credit? What do they mean by negative payment profile? What do they mean by adverse and default listings? What do they mean by a magistrate court judgment? I had no idea there was a judgment against me 21. What do they mean by notice listings? What do they mean by trace alert listings? What do they mean by administration order listing? What do they mean by a sequestration notice? 12 Get your free credit report click here

5 25. What do they mean by rehabilitation notice? What do they mean by collection information? How does my enquiry history build? What do they mean by debt counselling notification? How long is the information going to stay there? Should I just settle what is owed according to the credit record? Can I have a default listing removed? How do I get these listings updated? Can I have a judgment removed? What does a rescission application entail? Getting a high court listing removed My debt counselling is done, now what? My admin order is done, now what? What to do when you get a demand or summons The debt collectors are calling What if my bond payments are in arrears? My car instalments are in arrears, now what? Should I stand surety for someone? What if I want to cancel my credit agreement early? My Identity was stolen! What about the Sheriff? Can my credit record be held against in job aplications? Appendix - Templates 32 Get your free credit report click here

6 1. AM I ENTITLED TO APPLY FOR CREDIT? Applying for credit is your right as long as you are legally allowed to enter into a contract. You may not apply for credit if you are a minor or have entered into a credit rehabilitation program that specifically prevents you from doing so. Examples of such programs are Debt Counselling Arrangements, Insolvency Agreements or if you have been placed under Curatorship. 2. WHY WAS MY APPLICATION FOR CREDIT UNSUCCESSFUL? Your potential creditors can decline to give you credit if they deem that you are not able to afford to repay it or if doing so would contravene their risk policies. They do not have to give you credit but they must provide you with a reason as to why they have not approved your application. Remember that the New Credit Act passed a few years ago and was put in place to prevent reckless lending. This means that should a creditor loan you money and it is later proven that they did not do their due diligence in determining whether or not you could repay it, a court could force them to write off the debt or accept payment terms and a reduced interest rate. As a result, potential creditors are now a lot more careful about whom they lend money to. And so your credit history also plays a much more important role. If your credit application has been declined, it is a good idea to get a copy of your credit report and see whether or not there are adverse listings. If there are no judgments or defaults, look at your payment history and how much of your credit limit you have utilized. Warning signs for a creditor include payments that are consistently made late and credit limits that are maxed out. 1 Get your free credit report click here

7 3. IS IT MY RIGHT TO KNOW WHY MY APPLICATION WAS UNSUCCESSFUL? Yes, it is. The creditor needs to give you a firm reason as to why your application was unsuccessful. You can also request an explanation if any of the following happens as well: The credit limit offered is less than what you asked for; Your existing limit is decreased; Your facility is not renewed upon expiry; You application for an increased limit is unsuccessful; You are being charged a higher rate of interest that expected. You do need to take some care here you are entitled to know why your application was unsuccessful but the company does not need to give you a copy of your credit check. They are also entitled to simply decline the application without giving a reason it is up to you to ask what that reason is. 4. WHAT IF I HAVE NO CREDIT HISTORY? This can happen if you have never had any credit account, you will not have any credit history. Prior to the enactment of the New Credit Act, lenders were entitled to decline to give you credit due to this fact. Nowadays, they may not draw any conclusions on your creditworthiness based on the lack of information. 5. WHAT DO YOU MEAN BY CREDIT RECORD? This is a record of how you handle your credit accounts. Your creditors will forward information regarding your account limit and how you manage your payments. Should your account be in arrears, this will be reflected. Your payment history records in terms of this report can go back a couple of years but your creditors will be most interested in the last six months or so. Should you default on your agreements, the Get your free credit report click here 2

8 creditor may add an adverse listing to your report. It is mainly through the analysis of this report that your potential creditors will determine your creditworthiness. That is why it is important to pay your accounts on time. 6. CAN I GET A COPY? You have every right to get a copy of these reports. In fact, every credit bureau is obliged by law to furnish you with a report once every year without charging you. Any checks over and above that will have to be paid for. It is quickest and easiest to go through an agent to get a full copy of your credit report that way you can apply online with minimal fuss. My Credit Status allows you to apply by simply completing your details. You can opt for to pay for your report or see if you qualify for a sponsor s offer by simply completing a few qualifying questions if you qualify, you don t pay a cent! If you would rather not do this, you will need to contact each bureau and find out what steps to follow. 7. WHICH CREDIT BUREAU SHOULD I CONTACT? It is advisable to get reports from at least three or four of the bureaus in order to get a full financial picture. Alternatively, you could save time by getting an aggregate report from after all, who wants to fill out three or four different sets of documentation when you really only need to do it once? 8. MAY I BE CHARGED FOR MY CREDIT RECORD? Companies can act as agents. With your permission, they may directly obtain your credit records from credit bureau on your behalf. These companies may charge for this service. Many consumers use such companies for the sake of convenience. My Credit Status offers a unique service whereby you can get the report for free by by participating in one of their sponsored offers. It s the best of both worlds you can 3 Get your free credit report click here

9 apply for your credit report and have it in a matter of minutes without having to get up from your desk, filing lots of paperwork or standing in any queues. 9. HOW DO THEY WORK OUT MY CREDIT SCORE AND HOW CAN I MAKE IT BETTER? There are several Credit Bureaus in South African. Your creditors can choose to subscribe to either one or both of these. They then forward all information regarding your credit history with them to the bureau. The bureau then collates this information to come up with your credit score. Each bureau uses a special algorithm to determine what your overall score is. The procedure is fairly simple; everyone starts off with the same number of points. Points are then taken off for bad behaviour. The number of points you lose depend on the behaviour itself and how seriously this is weighted in terms of the algorithm. It is basically a lot like a demerit system, with some offences being worth more points than others. Top of the list of demerits are judgments. Your creditor may apply to the courts for a judgment against you if you neglect to pay your debt and their collection procedures have been unsuccessful. For a judgment to be removed from the system, you will need to either apply to the company concerned or take the matter to the courts yourself. Most companies will rescind the judgment if you pay the debt but you normally have to request that they do so. Should the judgment not be rescinded, it will stay in place for five years. The creditor may also mark it as paid in full. It is worth getting them rescinded as potential creditors will look unfavorably upon such listings. While waiting for the judgment to be rescinded it is a good idea to ask the creditor for a letter stating that the debt was paid in full. This can help when applying for new credit as well. Defaults are next on the list and are easier to pick up than judgments. These do not require a court order to put on the system and are not regarded as serious as a judgment. Normally a default means that the debt collection procedure is still in place. Perhaps you might even have made an arrangement to pay it off monthly. Such arrangements might also be captured on the system. In terms of the difference between the Get your free credit report click here 4

10 two when it comes to potential creditors, there really is not that much difference. If you have defaults it is clear that there are financial issues and most credit providers will view that as a bad risk for the future. Again, it does pay to have the defaults removed as well. This must be done through the credit provider. Most people know that they need to avoid getting judgments and defaults but are pretty oblivious to the information in the rest of the credit report. As mentioned above, your creditors update the bureaus on the status of your accounts with them on a monthly basis. If you look at a credit report, you will see each account listed, your credit limit and your current outstanding balance. In addition, there is a month to month record of whether or not the payments were received. If you pay late, or pay short, this will show up on this record and it will negatively impact on your credit rating. That is why it is important to at least pay the minimum monthly instalment on time every single month. In addition, your overall credit exposure will also be taken into consideration when your score is calculated this means not only how much credit you have actually used but also how much credit you could potentially use. If you are always maxed out in terms of your credit limits, your credit score is going to suffer. Finally, the number of enquiries into your credit history are also taken into account and this can affect your score as well. Also remember that the people viewing the account will be able to see who else viewed the account so they will see if you went to several different locations to apply for credit. This can also be viewed as a red flag so don t just apply for credit everywhere. When it comes to a credit application, all of the above is taken into consideration. The good news for you is that more emphasis is placed on the data gathered in the last six months. If you want to improve your credit score, start by getting any judgments or defaults rescinded, then start working the system to your advantage. Start off by paying all your monthly accounts on time this includes telephone, lights, etc. Also take a look at how much you have used your accounts. Ideally speaking, you should keep to 70% or less of your credit limits on a permanent basis if you want to have a better score. If your cards are maxed out, this might seem impossible but you can manipulate the score a bit. If you have an overdraft or credit card, for example, pay them on time and then try and wait a few days at least before maxing them out again. The longer you can leave the money in there, the better. This way, when your creditors update credit bureau, you won t always appear to be maxed out. 5 Get your free credit report click here

11 10. WHAT INFORMATION IS ON THE REPORT? The following information will usually appear on the report and is compiled from information provided in terms of info provided during credit checks: Your full names and ID number, as they appear in your ID book. Your latest telephone/ cellphone number and/ or address. The addresses you gave when applying for credit. How many dependents you have. Whether or not you are single. What formal qualifications you have. Who you have worked for in the past. Your behaviour when it comes to settling your accounts. All your credit contracts even those that are paid up. Whether or not you are undergoing debt counselling or if you have been declared insolvent. All applications for credit. Any action that has been taken against you in terms of debt collection. Your income both in the past and currently. What you owe in total in fact, anything that may impact on your creditworthiness overall. 11. CAN THEY PUT DOWN EVERYTHING? It may seem like everything is covered but there are some things that are not allowed: What race you are. Anything regarding your medical health. Anything to do with religion or creed. Who you support politically. Your sexual preferences. Whether or not you are in a trade union. Get your free credit report click here 6

12 12. CAN ANYONE JUST GO AND ACCESS THIS INFORMATION? Access to this information is strictly controlled and there is always a record of those who accessed the data. In order for anyone to check your credit history whether they are a potential employer or credit provider, they need your permission to do so. The only circumstances where your permission is not a requirement is when it is by court order or in terms of legislation. In addition, it is up to the credit provider to obtain this permission from you and then for them to request the report they may not demand that you source the report yourself. 13. WHAT IF THERE IS AN ERROR ON THE REPORT? You may, legally, dispute the information contained in the report if it is not correct. You will, however, need to prove that it is incorrect. Here you need to be a little more careful. Do keep in mind that your creditors do not have to remove the listings, even if they have been repaid. What they have to do, however, is update them as paid. Also, the original amount of the debt will always be listed. Another mistake people make is when they see a listing as being debt that is written off; they think that they are no longer responsible for that debt. You are still responsible for the debt, even if the listing is marked as an unpaid debt. Valid Disputes Could Include Receiving no notice in writing about the fact that an adverse listing was being recorded. (Legally speaking, it is the creditor s responsibility to notify you of this a minimum of 20 working days before they place the adverse listing.) You have, in fact, paid the default amount in full and the listing has not been updated to show this fact. The company has not made updates to your profile within the last two months. You see an enquiry listed that you did not approve beforehand. 7 Get your free credit report click here

13 14. WHAT PROCEDURE NEEDS TO BE FOLLOWED IF I WANT TO LODGE A DISPUTE? 1. Contact the relevant credit bureau and find out what their dispute procedure is this can vary between the different bureaus. You will need to provide a written record of the dispute and documentary evidence as well. 2. You may also be asked for a properly certified ID copy and also proof of residence. 3. Legally speaking, the credit bureau must provide an answer to your complaint within a reasonable period 20 working days is standard. You will not be charged for this dispute. 4. Whilst the matter is under investigation, the disputed data is flagged this will appear as flagged information to those viewing the report but they will not be able to view details. 5. If after the time has elapsed, the bureau is unable to find supporting reasons as to why the information has appeared, it is obliged to remove it. 6. If, on the other hand, there is a justifiable reason for the information to remain, they will need to provide you with proof. 7. Should the enquiry come out in the creditor s favour, the adverse listing will be put back in place. Get your free credit report click here 8

14 15. WHAT TO DO IF NOT HAPPY WITH THE OUTCOME? If you are not satisfied with the bureau s findings, you are entitled to lodge a complaint with the National Credit Regulator. This will need to be done in writing simply complete the Form 29 as detailed in the templates at the end of the book and it to complaints@ncr.org.za. Should you be under Debt Counselling and wish to complain, the complaint can be sent to dccomplaints@ncr.org.za Alternatively you can phone the NCR on or Template Referral to National Credit Regulator (Form 29) Pg 34 You can also contact the Credit Information Ombudsman if the credit provider has unfairly or mistakenly blacklisted you. Do keep in mind though that you will need to first contact the Credit Bureau concerned and, failing them, the actual creditor in order to give them a chance to rectify the situation. Keep a copy of all this correspondence. This will be needed by the Credit Information Ombudsman. Should they feel you have a valid complaint, they will negotiate with both the creditor and the bureau concerned. Rulings they make are legally binding on all parties. You can contact the Credit Information Ombudsman by telephone at or them at ombud@creditombud.org.za. Alternatively, mail a written complaint to: Postnet Suite 444 Private Bag 1 Jukskei Park 2153 BE AWARE: This is not something to do lightly though your creditors have rights as well and may appeal to the National Consumer Tribunal should they feel that the challenges are not reasonable, have no grounds or are frivolous. Should their appeal be successful, your rights to challenge the information listed at credit bureaus will be curtailed. The appeal is more likely to be successful if you have a history of such behaviour so make sure you are right before formally challenging the info. 9 Get your free credit report click here

15 16. WHAT WILL IMPACT ON AN APPLICATION FOR CREDIT? Your application for credit may not be successful if: Your history of paying is poor. You have any type of judgment on record. If you have numerous defaults. If there are so-called Notice listings. (These will be notes in place that you are under administration, debt counselling, etc.) If there is evidence that collection procedures have been undertaken. If you have too many credit enquiries this is usually a sign that the person is desperate to get money and has applied at numerous places. BE AWARE: By knowing your current credit score and by checking your credit report at least once a year, you will be able to see what is listed against your name. Take steps to remedy problems as quickly as possible and you will be able to maintain a healthy credit profile. 17. WHAT DO THEY MEAN BY NEGATIVE PAYMENT PROFILE? Every month your creditors will update the bureau on how you pay your accounts. This information is kept for up to five years to establish a history of how well you do manage the credit you have. Be aware that information from Telkom, etc. can also appear here so it is very important to pay your accounts on time every month. If you consistently pay your accounts late even if it is only a few days late you will be marked as a slow payer and will find that your credit score suffers. If you pay your accounts on time, your credit score will improve. It is a good idea to check when the payment due dates are for all of your accounts. Where possible, pay by debit order to ensure that you are paying on time. Remember it is not your creditor s problem if your accounts are due on the 1st and you only get paid on the 15th. Either try to get the payment date moved or make allowances in your budget accordingly. Get your free credit report 10 click here

16 18. WHAT DO THEY MEAN BY ADVERSE LISTINGS AND DEFAULT LISTINGS? Simply put, these are black marks that do count against you in terms of your credit score. Basically, you will earn these demerits if you do not hold up your end when it comes to your credit agreements. These terms cover the range of consumer behaviour from slow paying to written off or handed over. Needless to say, some adverse listings are worse than others. A slow payer, for example, might still be able to get a personal loan. Someone who has been listed as having absconded, however, will not. 19. WHAT DO THEY MEAN BY MAGISTRATE COURT JUDGMENT? If you have not being paying your accounts or have not been sticking to credit arrangements agreed to with your creditors, they are entitled to, after having given you adequate notice, to issue a summons. Should you not successfully defend your case; the court will issue a judgment against you. This is a legally binding order that the creditor may use to enforce payment from you. 20. I HAD NO IDEA THERE WAS A JUDGEMENT AGAINST ME! BE AWARE Legally speaking, creditors only have three years in which to register the judgment from the date when you defaulted on the account. Should you admit liability, or start paying again, the three year period is extended. Whilst in theory, the creditor is supposed to advise you of proceedings being conducted against you, in practice, judgments are often issued without the consumer s knowledge of the court date, etc. However, before seeking a judgment the creditor must prove that they have taken all reasonable measures to obtain payment and this will usually entail contacting you in writing and telephonically. They are then obliged to notify you that they are pursuing legal recourse. As long as they give sufficient notification, they are allowed to apply for a judgment. Such a judgment is legally valid for 30 years from the date of issue so it is important to avoid letting things get this far if possible. 11 Get your free credit report click here

17 21. WHAT DO THEY MEAN BY NOTICE LISTINGS? These listings are put in place when you are under an administration or sequestration order or are under rehabilitation. These are essentially warnings to potential credit providers. These listings do have a negative impact on your credit rating. Even if you are subsequently rehabilitated, you may find getting new credit more difficult. 22. WHAT DO THEY MEAN BY TRACE ALERT LISTINGS? In this case, one of your creditors has asked to be updated when new contact details are provided. Generally they will want to get hold of you and have found that their contact details are incorrect. 23. WHAT DO THEY MEAN BY ADMINISTRATION ORDER LISTING? Should the total amount that you owe be under R50 000, you can apply to be put under administration. The magistrate will take into consideration what you owe and what you earn and an affordable amount will be collected to be paid to you creditors on a regular basis usually monthly. This will be listed on the credit bureau and you will not be able to apply for more credit until it is removed. 24. WHAT DO THEY MEAN BY A SEQUESTRATION NOTICE? Sequestration is more serious, and it can be applied for by either yourself or your creditors. The court takes into consideration how much you own and how much you owe. Your assets will be sold to repay your creditors and you are effectively declared insolvent. In order to qualify, it must be possible to pay each creditor at least 10% of what is owed. Your creditors must accept this as full and final settlement if the order is granted. Get your free credit report click here 12

18 BE AWARE This is only an option of last resort as the notice is enforced for a minimum period of ten years unless you are rehabilitated before then. You will no longer have contractual capacity and will need to get permission from the trustee appointed by the court in order to enter into most new contracts. 25. WHAT DO THEY MEAN BY REHABILITATION NOTICE? You may, in some circumstances, apply for rehabilitation in court after being sequestrated. If successful, you will be a rehabilitated insolvent and will have full contractual capacity again. It is not, however, easy to get this type of order and it is recommended that you engage the services of a suitable attorney to assist you. 26. WHAT DO THEY MEAN BY COLLECTION INFORMATION? If your creditors have handed your account over for collection by debt collectors, they are allowed to list this on your credit history. Periodical updates may be made so that potential creditors are kept abreast of whether or not you paid or whether or not you absconded. 27. HOW DOES MY ENQUIRY HISTORY BUILD? Each time you make an application for credit, you will usually give permission for the creditor to have a look at your credit history. The details of who made the enquiry and when it was made are listed for each enquiry. BE AWARE Lots of enquiries are a red flag and will negatively impact your credit rating. This could be seen as an indication that you are desperate for credit and thus unable to afford it or it could also be seen as an attempt to commit fraud. 13 Get your free credit report click here

19 28. WHAT DO THEY MEAN BY A DEBT COUNSELLING NOTIFICATION? Should you apply for debt counselling, you are not legally allowed to apply for any new credit for the duration of the counselling. This will be noted on your credit record. 29. HOW LONG IS THE INFORMATION GOING TO STAY THERE? Unless you actually actively go about having the negative listings removed, they will stay on there until they expire. In most cases, your creditors will update the listing but will not automatically remove it when the debt is paid. If you have not paid the debt and the minimum period has lapsed, the listing will be removed automatically. This does not discharge your responsibility to pay the debt, however. BE AWARE It takes around about two or three months to get an adverse listing removed. It does pay to know how long the data is retained for in some instances, it makes more sense to simply allow the period to expire rather than engage in credit repair processes. In general, the listings will appear for around two to five years. Get your free credit report click here 14

20 DATA RETENTION PERIODS FOR LISTINGS ON YOUR CREDIT RECORD CATEGORIES OF CONSUMER CREDIT INFORMATION Results of Disputes Enquiries Payment Profile Classifications of Consumer Behaviour Listings of Enforcement Action Debt Restructuring Civil-court judgments DESCRIPTION The nature of the dispute and whether or not the complainant was successful in their dispute How many enquiries and the details of the enquirer. The factual information relating to the account history and payments made. Subjective classifications of consumer behaviour Details of what enforcement methods the creditor has employed. As per section 86 of the Act, an order given by the Court or Tribunal Civil-court judgments including default judgment MAXIMUM PERIOD 18 months 2 years 5 years 1 year or within fourteen business days after the account is settled 2 years or within fourteen business days after settlement by the consumer Until a clearance certificate is issued These are valid for a maximum of 5 years but may be rescinded earlier by court order or if the creditor removes it. Administration orders As per the court order Valid for either 10 years or until a rehabilitation order is granted. Sequestrations As per the court order Valid for either 10 years or until a rehabilitation order is granted. Liquidations As per the court order Unlimited period Rehabilitation Order As per the court order 5 years Other information Any other information not included in the category above 2years 15 Get your free credit report click here

21 30. SHOULD I JUST SETTLE WHAT IS OWED ACCORDING TO THE CREDIT RECORD? In the event that you are not disagreeing with the information as it is listed, and you want to repair your credit rating, you may be tempted to pay off the amount. Before doing this, however, you should determine whether or not you are legally liable for the debt. 30.1You do not legally have to pay the Following If the account is prescribed, you do not have to pay it in terms of the law. This applies to accounts where you have not had a judgment issued against you and you have not signed an acknowledgement of debt. You must also not have paid anything to the account in the preceding three years. If all these criteria apply, the creditor has no right to collect the debt. BE AWARE It is recommended that you carefully look at anything that is listed and see whether or not you are legally required to pay. In most cases, as long as the creditor did not take legal steps to collect the debt, you might have a complete defence and the debt will not be enforceable by law. If you sign any acknowledgement of debt or if you pay any amount, you will no longer have a complete defence and the creditor will have another three years to start the collection of the debt. Should someone try to collect a debt that is older than three years, you should demand that they provide a copy of a judgment issued, proof that you signed an acknowledgement of debt or proof that you made a payment in the preceding 3 years. Should you still be liable in terms of the above, then you need to determine how much you can pay. 30.2Get the latest balance The balance listed on the credit bureau is the balance as at the time that the listing was placed. In the interim, attorney s fees, interest, etc. may have accrued. You will need to contact the creditor or their collection agency and find out what the current balance is. Get your free credit report 16 click here

22 30.3You are entitled to a statement detailing the settlement balance Your creditor or their agent must, within 5 working days of being asked, provide you with a statement of the settlement balance without charge. This can be telephonically or in writing. BE AWARE This balance will usually only be valid for five days after you have received it. It is not binding in terms of your credit agreement if you make charges to the account after that date, you will be liable. 30.4What if I don t agree with the details on a statement of account? You are legally entitled to dispute the statement in whole or in part. You will need to give the creditor notice in writing of the dispute and they will then need to give a written explanation of how they arrived at that figure. BE AWARE The credit provider is not allowed to start collection procedures on an amount until they have provided the explanation as to the balance on the account. 30.5They will not send the statement of account If you do not get this statement within 5 working days, you are entitled to approach the National Consumer Tribunal in order to get an order that forces the credit provider to provide the statement requested. Disputes may also be referred to the Tribunal should the creditor not provide a satisfactory explanation. You may contact the National Consumer Tribunal by telephone at: ; by fax at: , by at: Registry@thenct.org.za. Their web address is: Negotiating a reduced settlement amount It is also recommended that you offer a reduced once off payment in full and final settlement of the debt. In most cases, especially where the debt has been outstanding for some time, this will be acceptable. You will need to tell them that you are unable to pay the full amount but 17 Get your free credit report click here

23 are able to make a lump sum payment in full and final settlement. You need to impress upon them that this is all that you are able to afford. If they accept this, request written confirmation. Insist on this before making the payment or you could still be liable for the whole balance. This is important, especially if you want to repair your credit. Without proof that they accepted the settlement amount, you could be forced to pay the difference when applying for the judgment to be rescinded. BE AWARE Also find out what the creditor s policy is in terms of rescinding the judgment before you pay. Some creditors will not allow the judgment to be rescinded if a settlement arrangement has been obtained in this manner The in duplum rule simplified The in duplum rule is a very important one to understand. Basically it means that interest must stop accruing when the unpaid interest is the same as the capital balance outstanding. The National Credit Act takes this one step further and specifies that the fees accruing to the account should not exceed the capital balance as at the time of default. BE AWARE Before settling any balance, do be sure to check whether or not the in duplum rule has been violated. You never have to pay back more than double the amount of the capital that you borrowed including collection fees, etc. 31. CAN I HAVE A DEFAULT LISTING REMOVED? You are entitled to have a default listing removed if: 31.1The creditor did not notify you in writing Your credit provider must give you at least 20 working days notice of their intention to list a default. You may, if required, ask for a copy of this information. Should you not have received the written notification, you may ask the bureau to remove the default. (It is, however, up to you to ensure that your address with the creditor remains current.) Template Dispute Letter to send to the credit bureau Pg 35 Get your free credit report click here 18

24 31.2The default listing relates to an account that has prescribed If the account has prescribed in terms of what was explained in Section 30.1, the creditor is not entitled to list it on the credit bureau. Let s say, as an example, that you held an account with Foschini, defaulted and last made payment in 1st October 2004, the account would be considered to have been prescribed on the 1st October 2007 providing that you did not make any payments in the interim, that you did not sign an acknowledgment of debt and that no judgment was issued. You are entitled to use the prescription defence and refuse to settle the account. The credit bureau would be obliged to remove the listing provided that it can confirm that the debt has prescribed. Template Dispute Letter to send to the credit bureau Pg HOW DO I GET THESE LISTINGS UPDATED? If you do pay the account in full, you may demand that the creditor concerned lists it as paid in full. They are not obliged to remove it at all. In the case of a judgment, you would need to have it rescinded first. BE AWARE The update will go part of the way to proving that your credit situation has improved but potential credit providers may still consider it a mark against your name. If it was a once off occurrence, they are usually willing to be more lenient. If, however, there are several defaults, you should see about having your credit repaired as this points to a pattern of poor money management. 33. CAN I HAVE A JUDGEMENT REMOVED? This one is trickier. If the judgment was granted in terms of a court order, then removing it will not be a simple matter. You will either need to let it run until it expires or you need to make an application to have it rescinded in the same court that originally granted it, unless you qualify 19 Get your free credit report click here

25 for Credit Amnesty as discussed in Point This will only be granted if the credit provider agrees. BE AWARE You are entitled to have the judgment rescinded if you can prove that it was issued in error. It would be up to you to prove this and would have to start by making an affidavit in which the matter is laid out in full. It would be advisable to consult an attorney to help you with this application. More About the Rescission Orders 33.1Who is it going to go to? Once you have paid off the amount, you need to get the relevant forms together and then submit them to the court that granted the judgment initially. 33.2How do I know which court this was? If you look at your credit report, you should see it under the relevant judgment. BE AWARE Should you still not be sure where the case was heard, you can ask the attorneys that handled the matter or details ask which court it was and what the case number is. 33.3Where do I get the case number from? This information will be found by referring to your credit report. You may also get this information from the attorneys that handled the case. 33.4Who is the Applicant/Defendant? Normally speaking, you would only apply to have a judgment rescinded if you are the one the judgment was against in the first place. You will be the Applicant/ Defendant. Get your free credit report click here 20

26 33.5 Who is the Respondent/Plaintiff? This will be the company that applied for the judgment in the first place. The company or their agents will be the ones that will sign to show their consent for the rescission. BE AWARE It is very important that, when the attorney signs the consent that they state unambiguously that they are the credit provider s attorneys and that they are a empowered to authorize this transaction. 33.6What about a body corporate judgment? In this case, the respondent will be any trustee that is acting on behalf of the body corporate or their attorneys so they are empowered to sign the consent. Again, do make sure that they confirm that they have the authority to do so. The Courts may actually request proof that the person is truly a trustee. It may pay you to approach the attorneys instead. 33.7What about a company s judgment? The managing director, or the company secretary may sign the consent as long as they do note that they have the authority to do so. Once again, it may be better to go through to the attorneys handling the case What do I do if the original court file has been mislaid? You may then be asked to open a duplicate file. Find out from the clerk of the court how to go about this. BE AWARE You may be asked for a copy of the original summons, the return of service from the sheriff confirming that the summons was served. You could find out from the credit bureau concerned whether or not they have these records or, alternatively, contact the attorneys on record. 21 Get your free credit report click here

27 33.9 Do I qualify for the credit amnesty? In September of 2013, the government instated a ruling that held that all judgment listings that were paid in full were to be removed from your report. Your creditor is under obligation to inform the credit bureau within 7 working days to remove the judgment when the debt has been paid. 34. WHAT DOES A RESCISSION APPLICATION ENTAIL? You need to gather the following to begin with: Notice of Motion and Service page in need Applicant s Founding Affidavit Consent Notice/ Affidavit Draft Court Order 34.1Notice of Motion This is basically the front page of the application and is a summary of what this is about, dates, etc. Either you or your lawyers will sign this. Should the plaintiff specifically waive service in their consent form, you are not obliged to deliver them a copy and can proceed with the application. If this is not the case, you need to deliver a copy to them. Template Notice of Motion Pg Founding Affidavit You need to sign this affidavit. You will need to affirm that you have settled the debt concerned and that the creditor does agree to the rescission of the judgment. Template Applicant s Founding Affidavit Pg 41 Get your free credit report click here 22

28 34.3What if the judgment is for me and someone else as well? In this instance, if you want the judgment to be rescinded against them as well, you would both need to complete an affidavit. All parties need to sign the affidavit. The other party will be referred to as the second applicant. Template Confirmatory Affidavit Pg Consent Notice This is also know as a Section 36(2) notice and must be signed by the respondent or their appointed attorney. There are going to be times when the original is requested it is a good idea to present the original if you are able to save time. Template Respondent/Plaintiff s Consent Notice (Letter) Pg 43 There are some courts that require a formal Consent Notice Affidavit to be signed in place of a letter. Find out from the clerk of the court ahead of time or you could risk having your case dismissed and having to begin again. Template Respondent/Plaintiff s Consent Notice (Affidavit) Pg Draft Court Order You will also need to draw up a draft court order. To make this legally binding as a court order, the Magistrate or clerk of the court will need to sign it. The next document you must prepare is the draft court order. This court order is referred to as a draft as it is only issued by the court once the judgment is rescinded. A draft court order is issued when it is signed by the Magistrate who rescinds the judgment or when the draft court order is signed by the clerk of the court concerned. Template Draft Court Order Pg 45 Don t forget to take this with when you go to court as this will be requested by the credit bureau concerned in order to clear the listing. 23 Get your free credit report click here

29 34.6How do I commission my documentation? You will need to sign and date the affidavit in the presence of a commissioner of oaths. They will then attest it and sign accordingly. You can find a commissioner at most post offices and police stations and possibly also at your bank. 34.7I have all the documents, now what? Now you will have to read through the consent document and see whether or not the company has waived service. If not, you need to deliver a copy of the action to them to advise them of the case, etc. If they have waived service, all you need to do is to submit the documents to the clerk of the court. 34.8When is it actually rescinded? This is when the application is actually allocated and you will be informed of this when you file the documents. 34.9Do I have to appear in person? You will have to come into court on the day that the clerk of the court has allocated the case to be heard Show the proper respect You need to dress smart-casual, preferably with a jacket and tie for men and in appropriate business attire for women. Dress conservatively and neatly. Doing otherwise may cause the magistrate to believe that you are not showing the appropriate respect and you may even find that they won t hear you application. Do keep a copy of ID with you when your case is being heard you may be requested to prove who you are The court order has been granted, now what? You will need to forward the court order to the relevant credit bureau send certified copies and retain the original. They then have 20 working days from the date of receipt to remove the listing so do allow some time for the post to get there as well. Get your free credit report 24 click here

30 Template Rescission of Magistrate Court Judgment Checklist Pg 46 BE AWARE You will need to send this notice to at least the three big bureaus a judgment is seldom listed on only one. 35. GETTING A HIGH COURT LISTING REMOVED There are very specific circumstances that will allow this you will need assistance from a lawyer or law clinic. Here the mere fact that the creditor consents to the rescission is not sufficient reason for the court to grant the order. The High Court judgment may be rescinded if: 35.1You have a bona fide defence and you can explain the defaults to the court s satisfaction You need to have a proper defence and a real reason as to why the court should grant this. This court is a lot stricter than a magistrate s court so more effort needs to be expended The judgment was sought or granted in error If you able to prove that the matter was applied for in error or granted in error, you may qualify to have it rescinded. Say, for example, you had come to an agreement with creditor or their agent and had subsequently stuck to that arrangement, the judgment should not have been issued. Be aware that both verbal and written agreements are binding Special circumstances existed prior to the judgment being taken against you and your creditor knew this Let s say that you defaulted due to special circumstances and did keep your creditor informed of these. If they agreed to stop legal proceedings or made you think that they would, you might be able to apply for rescission. 25 Get your free credit report click here

31 BE AWARE These are only a few of the possible reasons when it comes to a high court rescission application. It is recommended that you approach an attorney or law clinic for advice as regards your actual case The Credit Amnesty The credit amnesty also applies to the high court rulings as well. It is not, however, enough to just repay the arrears the whole debt must be settled. 36. MY DEBT COUNSELLING IS DONE, NOW WHAT? Your debt counsellor will have to issue a clearance certificate which can then be forwarded to the bureaus to have this listing removed. Template Clearance Certificate (Form 19) Pg MY ADMIN ORDER IS DONE, NOW WHAT? You may only have the admin order listing removed before it lapses in the following cases: 37.1On the basis that you have paid up your debts If you have paid all the debts listed in the admin order and the administrator s charges, you can request that the court rescind the order. The rescission notice must then be forwarded to the credit bureaus concerned. BE AWARE The admin order is not automatically removed for you, you need to apply for it to be rescinded. You will need to get the relevant certificate from the administrator confirming that the debt is indeed repaid in full. Get your free credit report click here 26

32 37.2 If your financial circumstances have recovered Should you subsequently have improved your financial circumstances, you may apply for rescission. You will, however, need to prove to the court that you are now in surplus rather than deficit and that you are able to pay more than the original admin order. 38. WHAT TO DO WHEN YOU GET DEMAND OR SUMMONS. The worst thing that you can do is to ignore it completely. First of all, check that it hasn t prescribed in terms of the discussion in point Read the summons carefully. If you are in fact liable for the debt, you should contact the creditor or approach your attorney. Should your creditor not be willing to accept your payment arrangement, you will need to inform the court that you will defend the matter through filing a notice to defend. If the debt has prescribed, it is advisable to defend it on this basis. If you do not defend the matter, the judgment may be awarded. It is up to you whether or not you wish to pay a prescribed debt or not. In this instance it is a good idea to ensure that payment is made without prejudice and without the admission of liability. 39. THE DEBT COLLECTORS ARE CALLING? Debt collectors must now be registered with the Debt Collectors Council. Should you have concerns about whether or not this is a credible debt collector, you should check with the society on telephone How do they usually work? Normally the collection agency is not going to be interested in your own circumstances and will want to recover as much money as possible. They will usually receive a portion of the money collected and so will want to maximize this percentage. 27 Get your free credit report click here