The Importance of your Confirmatory Affidavit
If you have just entered debt review, you will be asked to supply your Debt Counsellor and your attorney with many different documents, and to sign lots of forms.
It can seem boring and time consuming, but it really helps ensure that your Debt Counsellor and attorney have all the right information and that you understand what you are committing yourself to.
Also, because debt review is a legal process which goes to court or tribunal, you will be asked to sign, what is called, a confirmatory affidavit and then return it to your Debt Counsellor and attorney as soon as possible.
So, just what is a confirmatory affidavit, why do you need one, and how can you mess up your entire debt review if you don’t send this document back in time?
Debt Review Is a Legal Process
The debt review process involves creating debt restructuring proposals that are initially sent to your credit providers (who can agree or refuse). Their replies are compiled, and set out in legal documents that are taken to a court or the National Consumer Tribunal (NCT).
It is ultimately a court that decides whether or not you qualify for debt review (are legally over indebted) and what the debt restructuring arrangement will be. They do this by referring to all those documents you completed and signed, which were submitted by your attorney
Other important documents will also be submitted to the court, like your Debt Counsellor’s certificate (from the NCR) and your application form, where you initially asked for help. There will also be information about your debts and how the Debt Counsellor thinks the debts can best be settled.
One of the most important documents that will be included in your court papers is called a confirmatory affidavit.
What is a Confirmatory Affidavit?
A confirmatory affidavit is a legal document that confirms the authenticity of a statement or fact made by an individual.
In this case, the confirmatory affidavit confirms that you:-
(1) Did ask the Debt Counsellor for help, and
(2) Agree with the debt restructuring proposal that has been created for you, and
(3) Agree with the things the Debt Counsellor has said about your matter and the plan.
This document will form part of the court documents that are submitted on your behalf.
Having This Document Commissioned
Unlike a lot of documents that you receive at the start of debt review, this is not a document that you can just sign and send back to the Debt Counsellor or attorney. No, you need to take an extra step.
To make the confirmatory affidavit legally binding, you must sign it before a commissioner of oaths.
‘To make the confirmatory affidavit legally binding, you must sign it before a commissioner of oaths’
A commissioner of oaths is a person who is authorized to verify and witness the signing of legal documents. In South Africa, members of the South African Police Service (SAPS) are authorized to act as commissioners of oaths.
One of the most popular ways to have a document commissioned is by heading down to your local police station and asking for a officer (a commissioner of oaths) to help.
This takes time and effort.
Too Much Like Hard Work?
Many consumers make the mistake of taking too long to do this, because they do not want to go to all the trouble of going to the police station and potentially waiting in a queue.
Many find it hard to get to the station during suitable hours since they are busy working.
But finding excuses not to get the document commissioned does not help. Instead it can really harm your case, and throw all the protection of debt review out the window.
Making It Impossible For Your Attorneys Is Bad For You
Quintin Zimmerman of Liddles Attorneys says that “as a debt review attorney, the greatest frustration we experience in expeditiously issuing debt review court applications is the delay in obtaining the original confirmatory affidavits from consumers”.
In terms of the NCA regulations and the rules of court, the courts require that the consumer’s original confirmatory affidavit must be included as part of the issued court application.
The National Credit Act sets out a time period when people first start debt review in which credit providers have to behave themselves, but if that time period passes, then some nasty credit providers can try to get out of the process.
While most credit providers like to cooperate with the debt review process, they also want to get things sorted out as soon as possible, and don’t want things to drag on and on unresolved.
Quintin says that: “from date of signing the Form 16, we (the debt counsellors and attorneys) only have 60 days to get the matter to court to prevent credit providers from being able to terminate the debt review process”.
While debt reviews does not have to be put before a court within this time period (it can be impossible for a variety or reasons) it is considered by most attorneys as ‘best practice’ to do so. This is because once the matter is set down in court, then credit providers will not want to start a second lot of legal action (and waste another courts time). This means that set down matters help protect consumer’s assets, and ensure better cooperation from credit providers (or recourse for consumers if a naughty credit provider tries to cause problems).
Quintin has this advice for consumers: “when you receive the confirmatory affidavit from the attorneys, be responsible and please go as soon as possible to a commissioner of oaths to sign the affidavit. A timeously issued debt review court application is for your legal protection and peace of mind”.
Make Sure You Know What You Are Agreeing To
It is important to make sure that you understand the debt restructuring proposal before you sign the confirmatory affidavit.
Read it (even though it is in some fancy sounding court language) and see what it says.
Moreover, your Debt Counsellor should explain the planned debt restructuring proposal to you in detail, and you should feel comfortable with the terms before signing the document. After all, this is what you are saying in the affidavit. You agree with the plan and will stick to it.
Make Sure You Do It Right
Once you have headed to the offices of a commissioner of oaths (eg. an attorney or at the local SAPS station) you need to make sure that you do things right, or it can become a problem in a court with a difficult Magistrate.
Attorney Rynhardt De Lange of MiLaw says: “when you have your confirmatory affidavit commissioned, it is important that you make sure each page is initialled and sign the last page in the presence of the commissioner of oaths. The commissioner will then stamp the document to confirm that it has been legally verified. Make sure their full details are recorded on the affidavit”.
Here are more tips he offers:
TIP: Don’t print the confirmatory document on back to back sides of the same page. The courts don’t like that. Rather, print each page of the document on its own piece of paper. You can save the forests later.
TIP: Sign in black pen. The courts like that. This is not the time to get artistic.
Please Send It Back ASAP
Since the document has to be included in the court documents (which help keep your assets safe) it is crucial that once commissioned, you return the affidavit back to your Debt Counsellor or attorneys as quickly as possible.
‘return the affidavit back to your Debt Counsellor or attorneys as quickly as possible’
The sooner you do it, the better. This will give your Debt Counsellor and attorney more time to submit the court papers and ensure that the debt review process runs as smoothly as possible.