Don’t be bullied in dealings with collectors and lawyers

2014-12-17 00:00

CONSUMERS who owe a debt must pay up in my view but when dealing with debt collectors and attorneys, it’s important to understand your rights and to know where to turn in the event of a dispute.

Retiree John Gardener ended up in a ­dispute with Petterson and Pandaram Attorneys over an SMS regarding an outstanding account with Telkom after he moved from Underberg to Howick in February 2012.

Gardner said he had cancelled his ­Telkom line but with the stress of settling into his new home, did not cast a thought to the fact that he had not received a final account, which he later discovered had been sent to Underberg.

However, he claimed that he suddenly received what he described as a “bully boy” SMS 19 months later in November 2013, stating: “Summons and an order for Removal of your goods will now be served on you by Sheriff. Contact P&P ATTORNEYS (039) 317 3094 REF:40G002285.”

Both Telkom and Petterson and Pandaram have denied approving or sending the SMS, the latter stating that it had not been proven.

Gardener said he called the number that appeared on the SMS — the office number of Petterson and Pandaram — and settled an amount of R1 000 of a claimed R2 208,84. Gardner disputed the balance, which accrued after cancellation and included collection fees.

Gardener said he faxed a letter to attorney Sagree Pandaram, complaining about the content of the SMS, which he said he “strongly objected to” as he believed it was worded to scare consumers.

He said he did not receive a response and then lodged a complaint, together with a sworn affidavit, with the KZN Law Society. However, last week Pandaram said she had not received his letter.

“I am not frightened by the likes of Petterson and Pandaram but many folk out there will be terrified if an attorney tells them … that a summons is about to be issued and an order for removal of your goods.”

Gardener said to the best of his knowledge a summons, followed by a judgment and warrant of execution, would have to be issued, and only then could the sheriff attach a debtor’s goods for sale in execution.

“I objected strongly to the bullyboy tactics … which in my view are intended to intimidate those who are in ignorance of their rights,” he said.

However, Gardner said he is disappointed when the Law Society’s regulatory affairs deputy manager responded, advising him to contact his attorney if he believed his rights had been infringed.

He lodged a second complaint in July 2014 and received a similar response.

“I do not believe that this is in the public interest and the fact that they are able to act thus with the tacit approval of the Law Society of KZN is truly mind-boggling,” he said.

Sagree Pandaram of Petterson and Pandaram denied any knowledge of the SMS.

“It would seem prudent for Mr Gardener to send us an authentic screen shot of the Text (sic) message he refers to. Alternatively he ought to send us the message in its original form.

“As we are unable to view the number from which the SMS in question was sent, we are unable to admit that same was sent from our server or indeed our offices,” she said.

“The high degree of fraud prevalent compels us to question absolutely everything,” she said.

However, Pandaram said she is “at a loss” … “to find any fault” with the wording of the SMS. She said the SMS is a factual synopsis of the legal process.

“If the SMS has indeed emanated from our offices (and this is yet to be proven), then the senders cannot be held liable for the subjective manner in which such text could be or would be interpreted,” she said.

Telkom spokesperson Jacqui O’Sullivan said the company had complied with the National Credit Act and had sent final account statements, three recorded SMSes and reminder calls to Gardener.

“The last SMS offered the customer the option of reaching a payment arrangement and also noted that the matter would be handed over to a legal entity for collection,” she said.

She said Telkom approved all SMS scripts issued by debt collectors.

“Neither the debt collector in question nor Telkom has any record of the SMS referred to you by the customer,” she said.

She said the additional costs on Gardener’s account were for an Internet package, which he hadn’t cancelled but which Telkom reversed in “good faith” when it accepted his settlement payment.

KZN Law Society director Gavin John had not responded to questions sent on December 5, despite repeated efforts to elicit a response.

Advocate Andries Cornelius, CEO of the Council for Debt Collectors, the statutory body that regulates debt collectors, said debt collectors have to comply with the Debt Collectors’ Code of Conduct, while attorneys are answerable to the Law Society.

“A debt collector is, in terms of the code of conduct, not entitled to threaten a consumer. An SMS as set out in your letter where no court order exists, does not reflect the true nature of the situation and would therefore be a transgression of the code of conduct,” he said.

He said Gardner’s understanding of the legal process is in essence accurate.

“The SMS sent cannot be sent by a debt collector where no court order and writ of execution has been obtained … If the SMS was sent by an attorney you will have to address the complaint to the Law Society but if a collector, or you are unsure whether the actions is that of a collector or an attorney, you are welcome to send the complaint to us for investigation and where appropriate prosecution of the collector concerned,” he said.

I advised Gardener to lodge a complaint with the council so that he can get to the bottom of the matter and the source of the SMS.

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