Released every month our debt collection blog contains news, stories and tips to keep you informed.
Following the final report from the Royal Commission into Misconduct in Banking it has been revealed that the Government is proposing a change to the Australian Financial Complaints Authority (AFCA) Rules which will allow them to deal with disputes dating back to January 2008.
The proposed change would see AFCA being able to investigate disputes about misconduct that have not been dealt with previously by the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) or by the Courts. AFCA has indicated in a media release that consumers and small businesses will soon be provided with information as to the complaints procedure however confirmed that until such as time as the Rules are changed that they cannot consider such disputes.
In a statement to the media AFCA Chief Executive and Chief Ombudsman, David Locke, said, "The announcement from the Government today that AFCA will now be able to consider some of the legacy disputes excluded by the predecessor schemes going back to 1 January 2008, means that many more people will be able to get access to justice and have their matters properly considered. This is a really positive step for consumers and we will be issuing guidance shortly to assist people to bring these disputes to us."
AFCA has also publicly welcomed the Commissioner's recommendation in relation to s912A of the Corporations Act 2001 which will see AFSL holders being required to take reasonable steps to cooperate with AFCA to resolve disputes and release documents.
Newly appointed Chief Ombudsman, David Locke, has recently announced in an article in the Financial Review that Financial Service Providers (FSPs) that fail to respond quickly to matters brought to the attention of the Australian Financial Complaints Authority (AFCA) may face bigger compensation bills.
Since its inception in November 2018 AFCA claim to have received 11,500 complaints of which 4,000 have been about FSPs. By direct comparison the Financial Ombudsman Service, at its peak, received 2,100 complaints per month.
Mr Locke indicated that responsible lending and misleading sales were among the issues most frequently complained about by consumers and said in a statement, "The volumes of matters coming to us are very high. A lot of people have been treated very poorly by financial institutions over a number of years. The royal commission has shone a bright and forensic light on some issues but most people still feel they haven't been heard or had their matters addressed."
While Mr Locke was unable to provide an actual dollar figure for compensation ordered to date he did indicate that the AFCA cost model is structured so FSPs pay more the longer a dispute goes on so there is an incentive to resolve disputes as quickly as possible.
Of the 11,500 complaints since AFCA came into power 32% of cases have been resolved.
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:
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.
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
As you may be aware once a debt has been referred to External Dispute Resolution ("EDR") all collection action should cease pending the complaint or dispute being resolved. What happens though when you have a Judgment and a dispute or complaint is lodged?
Both of the current EDRs in the Financial Ombudsman Service ("FOS") and the Credit and Investments Ombudsman ("COSL") have Terms of Service which clarify their position when it comes to a Judgment with both indicating that where Judgment has been entered they have no jurisdiction but how does this work in a practical sense?
In our quest for answers we reviewed some of the outcomes where Judgment was entered and a complaint or dispute was lodged with an EDR. In our search we came across a Review by COSL in August 2016. The original complaint related to:
49. For the reasons set out in the Review and this Determination, I find that the consumer's claims have either not been made out or are outside our jurisdiction.
In summary it is now our opinion having read the Review, Determination and Decision that while enforcement of a Judgment Debt cannot continue while a complaint or dispute is before EDR that if a Defence or a Motion is filed by a consumer in the Court that the FSP has the right to respond to an action raised by a consumer.
Disclaimer: This article is general information only and does not constitute legal advice and is not intended to be relied on in any way.
Last month the Financial Ombudsman Service Australia ("FOS") released a new publication, "The FOS Approach to Financial Elder Abuse".
The publication is one of a series of documents released on a regular basis by FOS with this particular publication focusing on the challenges faced by identifying the warning signs of financial elder abuse, what is considered good industry practice and how they assess such disputes.
Philip Lead, Lead Ombudsman of Banking and Finance said, "As our society ages, FOS is seeing a greater number of disputes involving older Australians and their financial services providers. This abuse can involve the misuse of, or theft from, a bank account or other financial services product. Financial services employees need to be encouraged to trust their instincts when it comes to recognising this form of abuse."
Mr Field cited research indicating that between 2% and 10% of the older Australian population suffer such abuse every year with most abusers being relatives or caregivers or those who have gained the elderly persons trust and take an opportunistic approach.
You can download a copy of the publication from here.
New data released by FOS on 05/10/17 indicates that a record number of disputes were received in 2016-2017. The review shows that FOS received 39,479 disputes (a 16% increase from last year) with the increase predominantly driven by continued growth in insurance disputes. The number of insurance disputes increased approximately 38% during this period alone. FOS have said that this increase was due to a continuation of industry-specific issues including high claim numbers, organisational changes and the impact of Cyclone Debbie, all of which may have impacted upon the insurers' internal dispute resolution process.
Overall FOS claim that in 2016-2017 that the average time taken in which to resolve a dispute has reduced by 13% and a reduction of 43% from the previous year "without compromising the quality of outcomes". Chief Ombudsman, Shane Tregillis, said in a statement, "This means that people can have their cases resolved more quickly and get on with the rest of their lives."
Of the 39,479 disputes received by FOS 22,475 were accepted with 17,004 referred back to the Credit Provider as being outside of the FOS Terms of Reference. Of the 22,475 disputes received:
According to the Financial Ombudsman Service ("FOS"), the Bank of Queensland ("BoQ") is the worst offender for disputes when it comes to home loans.
For every 100,000 mortgages across Australia, BoQ was involved in 79 disputes during the last financial year. 40% were resolved by agreement between the parties while a further 29% were found in BoQs favour according to FOS.
A BoQ spokesperson said, "BoQ is dedicated to ensuring our customers' needs are properly met and has some of the highest industry standards in place to ensure we meet responsible lending requirements. Importantly, FOS has either found in favour of BoQ or the action was discontinued in about 45% of cases."
In a speech to the Financial Services Council Leaders Summit held in Sydney on 26/07, Minister for Revenue and Financial Services, Kelly O'Dwyer, announced the transition team tasked with the role of combining the existing External Dispute Resolution ("EDR") schemes.
Ms O'Dwyer said in a statement that the transition team would be led by former Reserve Bank Assistant Governor Dr Malcolm Edey. Dr Edy will lead the team with a view to have the new Australian Financial Complaints Authority ("AFCA") in place from 1 July 2018.
The AFCA will replace the "overlapping, inconsistent and narrower" system that includes the Financial Ombudsman Service ("FOS"), the Credit and Investments Ombudsman ("CIO") and the Superannuation Complaints Tribunal ("SCT"). Ms O'Dwyer went on to say, "It will [the AFCA] provide access to justice in a timely manner, with an independent arbiter and compensation where appropriate. It will make a real difference for those caught up in disputes with financial services providers".
The establishment of the AFCA was recommended following The Ramsey Review, conducted by Paul Ramsay of Melbourne University, however attracted criticism within the industry as there was a preference to favour consumer advocates and may not deliver fast and effective resolutions.
Ms O'Dwyer stated that because the AFCA was a central body for EDR that there will no longer be uncertainty or confusion about which body has jurisdiction to hear a particular dispute and that the central body will have the power to deal with multiple issues.
You can read the Final Report - Review of the Financial System External Dispute Resolution and Complaints Framework here.