the debt collectors amendment bill 2016 charges and interest peter rafferty chief executive officer...

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The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

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Page 1: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Charges and interest

Peter RaffertyChief Executive Officer

FutureSoft

Page 2: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

“What one does is what counts.

Not what one had the intention of doing.”

― Pablo Picasso

Page 3: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Examples of poorly drafted contracts

ServiettesCigarette packets

Page 4: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Examples of poorly drafted legislation

National Credit Act

Page 5: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Examples of poorly executedideas

Credit Amnesty(Chapter I and II)

Page 6: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Examples of intentionalover-regulation

EmolumentAttachment Orders

AuthenticatedDebit Orders

Page 7: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Page 8: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

“The intention behind the Debt Collectors Amendment Bill was OK …

but the execution … nah … not so good”

― Pablo Picasso

Page 9: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Improper conduct by debt collectors

15(1) A debt collector may be found guilty of improper conduct if he ...

(g) charges collection costs, and initiation fee, service fees, default administration charges or other charges which exceed the unpaid balance of the principle debt at the time of default

Page 10: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Who knows how the common lawIn Duplum Rule works?

Page 11: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Common Law In Duplum Rule

This common law rule provides that interest on a debt will cease to run where the total amount of arrear

interest has accrued to an amount equal to the outstanding principal debt

Can accrue againOnly interest

Common Law In Duplum Rule

Page 12: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Section 103(5) of the National Credit Act

Despite any provision of the common law or a credit agreement to the contrary, the amounts contemplated in section 101(1)(b) to (g) that accrue during the time that a consumer is in default under the credit agreement may

not, in aggregate, exceed the unpaid balance of the principal debt under that credit agreement as at the time

that the default occurs

National Credit Act

Page 13: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Section 101(1)(b) to (g)

initiation fee, service fee, interest, cost of any credit insurance, default administration charges, collection costs

Can never accrue againNot only interest

Page 14: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

15(1) A debt collector may be found guilty of improper conduct if he ...

(g) charges collection costs, and initiation fee, service fees, default administration charges or other charges

which exceed the unpaid balance of the principle debt at the time of default

Where is the reference to ‘interest’?

Debt Collectors Amendment Bill

Page 15: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Page 16: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Not all debt is subject to the National Credit Act

Page 17: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

But all debt will be subject to the Debt Collectors Amendment Bill

Page 18: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

The Debt Collectors Amendment Bill (once amended) will prohibit

the application of the Common Law In Duplum Rule

Page 19: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Page 20: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Definition for debt and collectionClarify fee structures

Remove ambiguity

My other personal issues

Page 21: The Debt Collectors Amendment Bill 2016 Charges and interest Peter Rafferty Chief Executive Officer FutureSoft

The Debt Collectors Amendment Bill 2016

Peter Rafferty, Chief Executive Officer, FutureSoft

Thank you