Released every month our debt collection blog contains news, stories and tips to keep you informed.
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.
As is the usual practice this time of year we have received notification that several Courts will not be opened or will have limited staff over the Christmas / New Year period.
As of 18/12 notification has been received from the following States and Territories:
New South Wales
A majority of Registries will be closed from Monday, 25 December 2017 and will re-open Monday, 8 January 2018.
All Registries will be closed from Wednesday, 27 December 2017 and will re-open Monday, 8 January 2018.
Australian Capital Territory
All Registries will close from 4.30pm on Friday, 22 December 2017 and will re-open Tuesday, 2 January 2018.
Magistrates' Court Registries permanently staff during the Christmas / New Year period except for gazetted public holidays.
Supreme and District Court Registries closed from Friday, 22 December 2017 and will re-open on Tuesday, 2 January 2018.
Please remember that our office will also be closed over the Christmas and New Year period with us returning for business on Wednesday, 3 January 2018.
A Cairns based car yard lender has been ordered by the Australian Securities & Investments Commission ("ASIC") and the Federal Court to pay $1.2 million in fines and costs.
Sole Director of Channic Pty Ltd and Cash Brokers Pty Ltd, Colin William Hulbert, was found to have breached consumer protection laws by charging vulnerable consumers 48% interest through his brokerage business for the purchase of used vehicles through his dealership Super Cheap Car Sales.
The initial complaint was bought to ASICs attention by the Indigenous Consumer Assistance Network ("ICAN") as several of their clients indicated financial hardship as a result of the loans being offered. Operations Manager for ICAN, Jon O'Mally said in a statement, "It was obvious going through the client paperwork at the time that Channic hadn't assessed whether the loans were affordable to the consumers they were being peddled to."
Deputy Chairman of ASIC, Peter Kell said, "ASIC will take action where vulnerable people are deliberately targeted by lenders who engage in unconscionable conduct. We have a strong focus on lenders and financial services firms who push poor quality and unsuitable financial product to Indigenous consumers, particularly where they fail to meet responsible obligations."
In handing down the penalty, Justice Greenwood said, "The conduct represents a total disregard of important normative obligations case upon Channic and CBPL by the NCCP Act, all designed to protect consumers from entering into "unsuitable" credit contracts with all the financial stress and emotional worry associated with the consequences of having entered into such contracts."
The Federal Court fined Mr Hulbert a total of $776,000 for breaching consumer credit laws and awarded costs of $420,000
Source: ASIC Media Release 17-108MR
With Tropical Cyclone Debbie about to impact a significant area between Cape Tribulation and Mackay we are again granting moratoriums to those in the affected areas.
We have made the necessary notifications on accounts that may be impacted by TC Debbie and where possible we will attempt to negotiate extensions for payment or make alternate arrangements. We urge those in the impacted areas to contact us only when it is safe to do so.
A Queensland based private investigator has failed to have his licence re-instated after using information illegally obtained from 2 Queensland police detectives from a police computer system.
The Office of Fair Trading ("OFT") refused to renew the private investigators licence after being advised that the person in question had been convicted of several counts of computer hacking and misuse under Chapter 37 of the Queensland Criminal Code. The investigator illegally gained access to car registration details, addresses, phone numbers, criminal histories and other information and was subsequently sentenced by the Magistrates' Court to 18 months' probation and 240 hours of community service with no conviction recorded.
The decision by the OFT was subsequently appealed by the private investigator where the Queensland Civil & Administrative Tribunal ("QCAT") upheld the decision of the OFT to refuse the licence renewal. QCAT stated in a press release, "It was contrary to the public interest to send a message to the security industry that a private investigator who used contacts in that way could continue to work without interruption".
The detectives involved in supplying the information to the private investigator have since had their employment terminated by Queensland Police and plead guilty to using a restricted computer program.
You can read the decision of QCAT here.
It is being reported across several news outlets that employees of Queensland Health are still being overpaid in excess of $700,000 a fortnight with former staff being issued demand letters threatening to refer the over-payments to debt collectors.
The bungle is estimated to have cost tax payers in the vicinity of $1.2 billion with the blame squarely placed on the introduction of a new system in 2010. The Queensland Government has commenced legal action in the Supreme Court in Brisbane against IBM, who developed the system, for misleading and deceptive conduct however IBM is arguing that the agreement contained clauses regarding liability against future legal action.
In the meantime, Health Minister Cameron Dick, has indicated that the referral of over-payments to debt collectors is used only as a last resort and in statement to the media said:
"We're under obligation, I believe as a government, to recover money for the people of Queensland. We'll continue to do that into the future. The system is stable. The number of over-payments is reducing over time. The dollar value of over-payments is reducing over time and that's a good thing for our system."
Union Secretary, Beth Mohle, blamed the LNP for introducing legislation in 2012 to recover any over-payments and said:
"Our members are heartily sick and tired of this and they just want the pain to end. Rather than concentrating on recovery of underpayments we think they should be concentrating on the recovery of staff who have been so adversely affected by this disaster" .
Ms Mohle has urged union members not to repay the money unless the Government could clearly demonstrate that an over-payment had occurred.
We often come across examples where requests are made to our office for the issue of Default Notices. Having reviewed the request we then find that the same debtors have been issued with the same Notices several times over the course of their loan.
Effectively as a Creditor you are teaching the debtor to pay upon receipt of the Default Notice and not as their Contract stipulates. The debtor will often make contact, make arrangements to clear the arrears however fall into arrears again. The next month you will be issuing another Default Notice, the debtor will contact and make an arrangement and the cycle continues. As a Creditor how can you end this cycle and take control of the account?
Under Section 94 of the National Consumer Credit Protection Act 2009 the debtor can propose an application, verbally or in writing, to postpone action under a Section 88 or Section 90 (i.e. they make an arrangement to clear the arrears). The application must be made by the debtor prior to the s88 or s90 Notice expiring.
As the Creditor you must respond to the request made by the debtor within 21 days of the application and advise of the decision, either accepting or declining the application, the name of their relevant EDR scheme and the debtors rights under the scheme.
What happens though if you wish to accept the debtors proposal but don't want to get caught in the cycle of issuing another Default Notice?
As a Creditor you can issue a Section 95 Notice of Postponement under the Act.
This Notice indicates to the debtor the conditions of the postponement and advises the debtor that the Creditor is not required to give any further Default Notice under the NCCP Act. The Notice however only applies to the debtor that originally negotiated the postponement and does not apply to other debtors, mortgagors or guarantors under the Contract unless these parties have consented to the negotiated postponement.
You can find out more about this service by contacting us.
A Magistrate from Queensland Magistrates Court disclosed the existence of a $44,000 State Penalty Enforcement Registry (SPER) debt of a Defendant in court on another matter.
The debt had not received a payment in over 10 years.
In determining a sentence on an unrelated public nuisance matter, the Magistrate decided that another fine was not appropriate, instead ordering a six month prison sentence which was suspended.