DEBT COUNSELLING V DEBT ENFORCEMENT: SOME PROCEDURAL QUESTIONS ANSWERED BMW Financial Services (SA) (Pty) Ltd v Donkin 2009 6 SA 63 (KZD)

The National Credit Act 34 of 2005 (hereinafter the “NCA” or “Act”) is an innovative but challenging piece of legislation. It provides for various novel approaches to debt enforcement in respect of credit agreements and has introduced debt-relief measures in respect of over-indebtedness and reckless credit that are new to South African consumer credit legislation. It is thus inevitable that in applying the provisions of the Act various issues will arise that will require interpretation and, therefore, intense scrutiny. In the recent judgment of BMW Financial Services (SA) (Pty) Ltd v Donkin, Wallis J was required to scrutinize various aspects relating to debt review and debt enforcement in order to decide the consumer’s fate as influenced by the NCA (66; and see also s 130(1)(a)).

I ‘Notice’ You ‘Noticing’ Me: A Critical Analysis of the Section 129 Notice of the National Credit Act, and Recomendations for the Implementation of a ‘Specialised’ Foreclosure Notice

Section 129 of the National Credit Act provides that a creditor may not commence any legal proceedings to enforce a credit agreement before first issuing a section 129(1)(a) notice to the debtor. Thus, in a foreclosure context, should a mortgagee wish to enforce a mortgage agreement, he must first comply with section 129(1) and deliver a section 129 notice to the mortgagor. Should this not be done, any ensuing foreclosure proceedings could potentially be excipiable. Accordingly, section 129 has been described as the gateway to litigation and compliance with this section is paramount for debt enforcement. Unfortunately, section 129 has been the subject of much criticism and uncertainty due to its ambiguous wording and the resulting interpretation. Much of the uncertainty relates to the way in which the notice must be delivered and the contents of the notice. With specific regard to foreclosure proceedings, section 129 fails to alert the debtor about his rights and remedies and fails to notify the debtor of the full consequences of foreclosure. Consequently, the section has been amended several times. Unfortunately, the amendments have not resolved all the loopholes in section 129, and some of these amendments have created more uncertainty and ambiguity. Case law has, however, provided some direction as to the interpretation of section 129. Despite the amendments and case law developments, uncertainty still exists, and clarity is urgently required in relation to the interpretation and application of section 129 during foreclosure proceedings. It is accordingly suggested that certainty can only be achieved by implementing a specialised ‘foreclosure notice’.

Reforms Protecting Minority Shareholders and Firm Performance: International Evidence

This study investigates the effect of corporate governance reforms protecting minority shareholders on the firm value measured by Tobin’s Q. Using the difference-in-differences estimation and a large international sample from 65 countries for the period 2005–2018, the results show that the firm values increase more in the reform countries than non-reform countries relative to pre-reform levels. This positive effect changes for firms with high and low levels of debt. Moreover, the values after reforms increase more for firms located in civil countries and in countries with rule-based reform approaches and low debt enforcement because the reforms strengthening minority shareholder protection are more efficient in those countries. The evidence is robust to accounting-based performance as well.

Execution for debt in the volost courts of Barnaul districts of Tomsk governorate: origin and incidence in the judicial practice (late XIX – early XX centuries)

The subject of this research is the judicial practice of the volost courts of Barnaul district of the Tomsk governorate in the late XIX — early XX centuries. Minute books of the volost courts, which contained records on the claims, testimony of the parties and witnesses, and court decision, served as the main source for this research. Fine and comprehensive record management made allowed applying historical-systemic method, which revealed the mechanism of functionality of the volost courts. The use of content analysis allowed determining the priority of the questions under review, classifying debt enforcement by the types of undischarged obligations, reconstructing the level of legal consciousness of peasants, and assessing the effectiveness of the peasant self-governance. It is established that litigations on obligations default held second place among all cases in the volost courts, which indicates wide applicability of the practice of “seeking truth” not in the rural society, but the official institutions. Based on introduction of new sources into the scientific discourse, the author concludes the spread of debt enforcement is related not only to increase of currency circulation in everyday life of peasants, consolidation of the practice of estimation of things, and getting paid for work, but also with the crisis of trust-based relations within the rural community.

Considering the Process of Debt Collection in Community Corrections: The Case of the Monetary Compliance Unit

Monetary sanctions levied on individuals on probation and parole may dramatically influence their ability to reintegrate into the community and to complete their community supervision. Yet very little work has empirically assessed how agencies respond to these obligations. This is critical, given that individuals under community supervision occupy a liminal space: free in the community yet often at risk of violation, rearrest, additional fines, or re-incarceration. In this article, we introduce an approach to the collection and management of monetary sanctions by an adult probation and parole agency in one Pennsylvania county. This specialized department focuses solely on repayment of fines, fees, and costs for a subset of probationers and parolees who have completed all other supervision requirements. We complement the conceptual overview by presenting administrative data on this caseload ( N = 5,811) to describe the population under supervision and assess the factors associated with debt amount, having difficulty with repayment, and being the subject of an enforcement action for non-payment. We conclude with a discussion of the advantages and disadvantages of this model compared with historical and other existing models of debt enforcement during community supervision.

Do foreign banks intensify borrower discouragement? The role of developed European institutions in ameliorating SME financing constraints

The growing activity of foreign banks in most European countries may increase financing constraints by intensifying the problem of borrower discouragement. We provide new evidence of this association by analysing a sample of small and medium-sized enterprises (SMEs) operating in 25 developed and developing European countries. We find that financing constraints increase with foreign banks for those SMEs operating in countries where the share of banking assets owned by foreign banks is above 34%. Our results also show that borrower discouragement may decrease, or increase less, with the presence of foreign banks for SMEs operating in countries with high income, with cheap debt enforcement mechanisms, or having a private bureau that provides credit information about firms and individuals. These results suggest that unification towards better institutions needs to occur in Europe before the banking union progresses to a more open banking system.