Released every month our debt collection blog contains news, stories and tips to keep you informed.
The Australian Securities & Investments Commission (ASIC), in conjunction with Nature Research, has recently compiled a report "The Consumer Journey Through the Internal Dispute Resolution Process of Financial Service Providers" which has looked at the consumer experience of the Internal Dispute Resolution (IDR) process.
The research found that:
In our August 2018 edition of Debt Collection News we reported that ASIC were recommending reform to the "buy now, pay later" providers such as AfterPay and zipPay.
Following a report from the Australian Securities and Investments Commission (ASIC) it is being reported by Financial Review that the National Credit Code would not extend to the buy now, pay later sector however ASIC are indicating that there will still be close monitoring of those involved in providing the service to consumers.
The report from ASIC identified 3 key areas of focus:
- ASIC states that it will take regulatory action to address misconduct and monitor industry and risks to consumers;
- ASIC is "considering their legal position" of scenarios where a merchant inflates the cost of the underlying goods if a consumer uses a buy now pay later arrangement.
- ASIC is also 'monitoring' the issue of consumers becoming increasingly indebted due to the ability to access an alternate providers where they have missed payments. According to ASIC, each provider reviewed takes some steps to refuse some credit applications eg if a consumer misses a scheduled repayment, five of the six providers suspend that consumer’s ability to make additional purchases until they have remedied the missed payment. However, only one out of six providers in the review examined the income and existing debts held by consumers before providing their services. ASIC also received reports of instances where consumers were allowed to the service despite having limited or no income and substantial existing debt; and
- ASIC states that it expects providers to ensure that:
(a) consumers adequately understand the terms of their arrangement;
(b) a complaints process is visible and accessible for consumers;
(c) consumers understand that they can request financial hardship assistance from their provider; and
(d) merchants act consistently with guidelines supplied by the provider which limit how these arrangements may be promoted and provided to consumers. ASIC writes that 'while we identified instances where providers could have done more, each provider demonstrated a readiness to work with ASIC by improving their practices in response to our recommendations' and that some have already implemented 'several improvements'.
A copy of the report released by ASIC can be read online at Report 600: Review of Buy Now Pay Later Arrangements November 2018.
Debt collectors in Queensland appear to be confused about a recent communication forwarded to Magistrates' Court Registries regarding the legality of the filing of documents according to a recent article in the Agent.
It is alleged that a recent communique was sent to the Registries reminding them that those licensed under the Debt Collectors (Field Agents and Collection Agents) Act 2014 are ineligible in which to be signing and appearing for a Party (the Plaintiff) when the Party or their Solicitor should be acting. The communique allegedly cited Regulation 19 of the Uniform Civil Procedure Rules 1999 and -
19 Originating Process Must Be Signed
(1) The plaintiff or applicant, or the person's solicitor, must sign the originating process
(2) This rule applies subject to rule 975A(1)
The confusion apparently stems from the Magistrates' Court historically accepting an originating process (Statement of Claim) from debt collectors who claim that the Court refusing to accept documents is contrary to the Rules. Regulation 31 of the Uniform Civil Procedure Rules 1999 states:
31 Applications in a Proceeding
(1) A person making an application in a proceeding, or the person’s solicitor, must sign the application and file it.
(2) The application must be in the approved form.
(3) The application must name as respondent any party whose interests may be affected by the granting of the relief sought.
(4) If an application is made by a person who is not a party to the proceedings, the application must have on it the information required under rule 17 to be on an originating process unless the information has already been provided on a document filed in the proceeding.
Debt collectors are arguing that the Act itself does not provide a definition of a person and it would be fair and reasonable to assume that a debt collector acting for the Plaintiff becomes the Applicant on behalf of the Plaintiff.
It has been noted that Registry staff at some Courts have been attempting to assist debt collectors with reports of having the Plaintiff sign the enforcement applications or providing the debt collector with a power of authority to to all things necessary in which to commence the proceedings.
While there does not appears to be a resolution in sight there have been requests for the Queensland Attorney-General and Minister for Justice, the Honourable Yvette D'Ath to intervene.
Requests to Registries of the Magistrates' Court for copies of the communique and / or confirmation of who released the communique have allegedly not been responded to.
Please note that LCollect does not undertake legal proceedings. LCollect instruct and use the law firm Collection Law Partners for files requiring legal proceedings.
The warning comes following a complaint by a consumer that if she wanted to dispute a debt that she should raise the dispute with them but pay the debt to them in the meantime.
A spokeperson for the Commerce Commission said in a statement that the debt collection agency was incorrect in this advice as the debt collection agency had in fact purchased the debt and that the dispute should be handled by them. The Commission went on to say that it has also warned the debt collection agency to take care in the future to avoid making statements to debtors which may give the impression that Court action was inevitable if the debtor did not make immediate payment.
Commissioner, Anna Rawlings, said, "While debt collectors often need to discuss the nature of a debt and the consequences of non-payment with a debtor, they must not use misleading techniques to pressure debtors into paying or to deter them from pursuing genuine disputes. This includes saying that a debtor cannot dispute a debt, telling them that court action will commence within a certain timeframe when it may not or giving the impression that certain outcomes are inevitable if they are not."
While there may be differences in the legislation surrounding debt collection practices in New Zealand and Australia this article should serve as a timely reminder of your obligations under the Debt Collection Guidelines: for Collectors and Creditors with a specific focus on s13 of the Guidelines regarding disputed liability and s19 of the Guidelines regarding Representations about the consequences of non-payment.