Released every month our debt collection blog contains news, stories and tips to keep you informed.
There has been an amendment to the requirements for issuing Garnishee Orders for Ddebts. If you are using this enforcement action, you must now state the grounds relied on in support of identifying a debt owed by the Garnishee to the Judgment Debtor in the form of an Affidavit.
UCPR 39.35 now states:
(1) Unless the court orders otherwise, an applicant for a garnishee order must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.
(2) The affidavit in support:
(a) must identify the garnishee, and any debts that are, or are reasonably likely to be, owed by the garnishee to the judgment debtor, and
(a1) must state the grounds relied on in support of identifying a debt for the purposes of paragraph (a), and
(b) must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit.
For advice as to what this legislative change may mean to you and future applications for Garnishee Orders we recommend that you contact Collection Law Partners or seek your own independent advice from a qualified legal practitioner.
In a recent interview with nestegg.com.au, principal registered trustee, Andrew Aravanis of Aravanis Insolvency, has disclosed the professions most likely to file for bankruptcy based on their own 2017 client base.
Making the top 5 professions were:
The Australian Securities and Investments Commission (ASIC) has now released Regulatory Guide 267 Oversight of the Australian Financial Complaints Authority ahead of the 1 November 2018 transition.
The RG sets out how ASIC will perform their oversight role in relation to the Australian Financial Complaints Authority (AFCA) and includes guidance regarding members AFCA membership obligations.
ASIC has noted that it will retain its existing guidance under RG 139 until all complaints made under the existing schemes have been resolved and also stated, "Licensees and credit representatives must continue to maintain their EDR [external dispute resolution] membership through the transitional period, including paying membership and other scheme fees in full as required."
The Australian Securities & Investments Commission (ASIC) has recently released a revised version of Regulatory Guide 165 - Licensing: Internal and External Dispute Resolution.
The guide, which should be read in conjunction with RG139, which is currently in an amended draft form, specifically updates the transitional arrangements for disclosure of AFCA contact details in final response letters and "delay letter". An extract of which has been reproduced below:
AFCA will commence receiving complaints about financial service providers (including superannuation trustees and RSA providers), credit providers, credit service providers or unlicensed COI lenders on 1 November 2018.
To promote consumer awareness of their rights to pursue a complaint in the transition to commencement of AFCA, these providers and lenders must:
• ensure that IDR final response letters and ‘delay letters’ (see RG 165.92) issued on or after 21 September 2018 and before 1 November 2018 include references to both the relevant predecessor EDR scheme (which will be able to receive complaints only up until 31 October 2018) and AFCA (which will be able to receive complaints on and after 1 November 2018)—we have set out example text below for IDR final response letters; and
• ensure that such letters issued on or after 1 February 2019 include references to AFCA but not the predecessor EDR schemes. Letters issued between 1 November 2018 and 1 February 2019 may continue to include references to both the predecessor EDR scheme and AFCA, provided it is clear that only AFCA can receive complaints after 1 November 2018.
Example text for members of the Financial Ombudsman Service:
If you are not satisfied with our response, you may lodge a complaint:
• with the Financial Ombudsman Service Australia if lodged before 1 November 2018:
Phone: 1800 367 287
Mail: Financial Ombudsman Service Limited
GPO Box 3
Melbourne VIC 3001; or
• with the Australian Financial Complaints Authority if lodged on or after 1 November 2018:
Phone: 1800 931 678
Mail: Australian Financial Complaints Authority
GPO Box 3
Melbourne VIC 3001
Download RG165 May 2018
The Credit and Investments Ombudsman (COSL) has recently their quarterly systemic issues update for Q3 2017/2018.
A summary of each recommendation and review is provided below and is courtesy of FSP News:Review | 16 September 2017
The Attorney Generals Department has recently released a discussion paper regarding the relationship between consumer credit reporting and hardship.
The purpose of the paper is to examine whether hardship is currently treated adequately under the credit reporting provisions in Part IIIA of the Privacy Act, whether there are opportunities for reform and if so what reforms are appropriate.
The Attorney Generals Department did stress that the paper is not a general review of repayment history information in the consumer credit reporting system.
Our Debt Collection News blog and newsletter started back in July 2009 with our first article REVS - Putting Them on and Keeping Them Current.
Since then we've covered a whole range of things from street lights being repossessed, providing support to our local communities by being a supportive employer of the NSWRFS, sharing community awareness articles such as suicide awareness, donating to appeals such as Give Me 5 For Kids and more recently keeping you up-to-date about changes to the EDR Scheme.
Here's some pretty impressive numbers we've collated over the last 9 years:
Throughout the month of June 2018 the Australian Securities and Investments Commission (ASIC) ran a public campaign designed to inform consumers of the high level of fees charged by credit repair and debt management firms.
The campaign aimed to highlight the alternative approaches available to consumers rather than paying high fees for a service that they may not receive. These available options include approaching the Creditor concerned about an adverse listing on a credit report, utilising a service such as financial counselling or contacting the relevant external dispute resolution centre if the original complaint cannot be resolved after going through internal dispute resolution.
This is a follow-up campaign to the 2016 ASIC report which found that credit repair and debt management firms:
The Financial Services Royal Commission has recently heard evidence from a widow that the Financial Ombudsman Service (FOS) made a Determination that she should pay her deceased husband's business loans worth $226,000 over a period of 12 to 18 months.
The evidence was highlighted after the widow, Jennifer Low, was pursued by Suncorp for the repayment of business loans that were provided to her and her late husband after a workplace accident claimed Mr Low's life in 2016. It is understood that Ms Low approached the Consumer Action Law Centre for assistance when Ms Low proposed to pay off the outstanding debt over the loans original 17 year term with monthly repayments of $1,111 which was higher than the contractual repayment however FOS declined her proposal.
FOS found that it would be reasonable for Ms Low to repay the loan, interest free, within 12 to 18 months or a maximum of 5 years. During the hearing, Phillip Field, Lead Ombudsman for Banking and Finance was forced to explain his decision where he claimed that he did not want Ms Low to be still paying the debt in her 80's. Mr Field told the royal commission, "What I had in mind was that situation where you had somebody who was in their 60s paying it until they’re 80. And certainly, from my perspective, if a bank were to lend to somebody in that scenario, I would regard that as not reasonable." He went on to say in the witness box, "In hindsight, I don’t think that was the correct thing to do. I think I should have accepted that the [Consumer Action Law Centre] position was correct and then got on the phone to the bank then and there to try and resolve the matter. I should have said that… once the arrears were cleared on — and at the time of that call it was, but provided the arrears — any arrears on the interest-free loan were also cleared, then if she could make those payments, she was entitled to do so and it would be interest-free until it was paid off."
While the Low Family has not yet accepted Suncorp's offer to extend the repayment period to 5 years instead of 12-18 months, Mr Field said that he expects the bank to change their position and allow Ms Low to make monthly principal-only repayments for the duration of the loan as per her original proposal.
Source: mortgagebusiness - May 2018