Repossession of Goods in the Context of the National Credit Act

The current economic climate has resulted in a proliferation of "cash strapped" consumers. Accordingly the purchase of a vehicle is very rarely a cash transaction. The obvious alternative is an installment sale agreement, whereby the vehicle is paid off over a period of time.As a credit agreement, an installment sale agreement is subject to regulation by the National Credit Act 34 of 2005 (NCA). The terms of the agreement are generally standard, providing for repayment of the capital plus interest, provided that upon the consumer's default, the credit provider is entitled to cancel the agreement and repossess and sell the vehicle in order to defray the outstanding balance owed by the consumer. With credit agreements such as installment sale agreements now being regulated by the NCA, the consumer is protected from abusive credit providers by a number legislative provisions providing for a plethora of consumer rights. But what happens when these protective provisions have the effect of unilaterally altering the terms of a credit agreement to the consumer's detriment? This was the very issue before the court in the matter of ABSA Bank Limited vs Pieter de Villiers and the Magistrate for the District of Simonstown (Case No 15692/07). The matter involved an application by a credit provider to repossess a vehicle purchased on installment sale. The court was charged with determining whether the provisions of the NCA entitled the credit provider (applicant) upon default by the consumer to apply for a final order authorizing attachment of the vehicle, without requiring the credit provider to first issue summons for cancellation of the agreement. In terms of the common law principles of law of contract, restitution, which in the context of the aforementioned matter constituted repossession of the vehicle, is the normal result flowing from the cancellation of a contract, and accordingly a credit provider seeking to repossess a vehicle upon default would be required to claim and successfully obtain cancellation of the agreement prior to attachment of the vehicle.

New Business Valuation Standards Affect Divorce Cases

Business valuation experts in family law cases rarely reach the same conclusion about the value of a business. Many times, the difference lies in the methods used to value the business and the information each accountant gathered. Because of this problem, new guidelines have been developed to increase the quality of valuation assignments. Although experts will no doubt continue to disagree about the value of businesses, at least now they will have to follow the same standards in valuing those interests.Effective January 1, 2008, the American Institute of Certified Public Accountants (AICPA) will require all of its members to follow new guidelines for business valuations, including those relating to marital dissolution actions. The AICPA developed the valuation standard – called the Statement on Standards for Valuation Services No. 1 (SSVS#1) – to improve the consistency and quality of practice among its members who perform valuations. SSVS#1 provides a comprehensive guideline for performing quality valuation services. Since AICPA has approximately 330,000 members, of which 2,500 hold the organization’s Accredited in Business Valuation (ABV) credential, most business valuation experts will be subject to the new standard as members of AICPA. SSVS#1 provides the following benefits:• Specifies generally-accepted valuation approaches.• Encourages the standardization of the contents and format of business valuation reports.• Describes the type of documentation that should be considered in the valuation process.• Adopts a glossary business valuation terms.When valuing a business, the expert should consider the three most common valuation approaches – the income approach (converting anticipated economic benefits into a present amount), the market approach (comparing the subject business to similar businesses that have been sold), and the asset approach (taking the value of the assets net of liabilities). The guidelines state that “rules of thumb” or industry guidelines are not a valuation method, but may be used as a reasonableness check against the results found under the other methods. Finally, the guidelines state that the expert must also consider whether adjustments should be made to the indicated value, including a discount for lack of marketability, a discount for lack of ownership control, or a premium for ownership control. If there is a conflict between SSVS#1 and published judicial or other authority specifying the valuation procedures to be used by the expert, then the expert should follow the published authority.

What Exactly is a White Collar Crime and how are they Defended?

Although there is no set definition of white collar crime, the term is used to characterize a number of nonviolent crimes of dishonesty. These crimes are committed by professionals or entrepreneurs under the veil of legitimate business activity. Today, there is a trend toward tougher punishment for white collar crimes. A recent example is the Bernard Madoff case where Madoff received 150 years in prison. This case is a good example of the effects white collar crime can have on our society. White collar crime can be charged in different ways depending on the illegal activity. Some criminal activities are prohibited by specific laws while others are prosecuted under one or more general laws criminalizing dishonest behavior. White collar crimes include: embezzlement, false statements, obstruction of justice, bribery, fraud (federal mail, wire, and bank fraud), federal perjury. Tax Crimes are often charged for failing to file a tax return or filing a false tax return because it is interfering with the administration of the internal revenue laws. Tax evasion has been effectively used to arrest and convict persons who have committed more serious offenses but the prosecutor didn't have enough evidence to press charges on those offenses. For example; Al Capone, Pete Rose and Sun Myung Moon.Computer Crime is an area of the law in which the government is constantly adding new offenses to keep up with the growth in new technologies. Federal and California Penal Codes include provisions covering computer crime such as contaminant into a computer system and using computers as part of a scheme to defraud. In some criminal trials, the prosecutor proves all the elements of a crime but the person accused is not punished because he or she has a valid defense. Some defendants accused of white collar crimes claim entrapment by the government by claiming they were induced to act, and would not have acted unlawfully otherwise. Another defense used by businesses is that a particular businessperson was acting alone without the authority of the company. Felonies and white collar crimes can carry the strictest punishments. Federal sentencing guidelines contain a method for calculating fines to be paid by organizations that commit crimes. Businesses that are found guilty of operating for a primarily criminal purpose incur fines equal to their total assets. California also has laws that allow the authorities to seize property connected with the commission of a crime. Due to the of lack of monitoring by our government ,our corporations', as well as individuals has resulted in numerous acts of white collar crimes both large and small. These acts have consequences to our society that will stay with this country for several years to come if not decade's.

Protections Disappearing for Older Workers

The Age Discrimination in Employment Act, passed by Congress in 1967, protects workers over the age of 40 from being discriminated against by their employers. In 2008, the number of age discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) increased by almost thirty percent over those in 2007. But, in Illinois, state and federal agencies that investigate such claims are backlogged and charges are expiring before an investigation even begins.The current economy has caused cuts across the board and the EEOC and the Illinois Department of Human Rights have not escaped from the squeeze. The result is that charges pile up for months and, if an employer is not interested in mediation, an employee has little recourse other than to request a right to sue letter and begin formal litigation.However, even the option of litigation is becoming less and less appealing. With recent Supreme Court decisions such as Gross v. FBL Financial Services employees with age discrimination claims must meet a higher standard of proof. Prior to this ruling, if an employee demonstrated that age was a factor in his/her termination, the employer would be required to show that the termination was not the result of age bias, but was for a legitimate reason. Now the burden is on the employee to show that age was the deciding factor in his/her termination. This shift in the law is especially troubling since the number of unemployed older workers is growing rapidly.