Debt collection guideline: for collectors and creditors

11. Providing information and documents

  1. You should address requests for information or documentation as soon as possible.
  2. In certain circumstances, failure to provide information may constitute misleading or deceptive conduct or unconscionable conduct. Copies of contracts and related documents should be provided without unreasonable delay if these are requested by a debtor. This can also assist if a debt has been incurred with a business operating under a trading name that is different to the creditor name supplied to the debtor. You can only charge for provision of documents if the contract that gave rise to the debt specifically allows for it.
  3. If a debt relates to consumer credit regulated by the NCC, specific obligations are imposed on creditors to provide information and documents on request. These are set out in the following sections of the NCC:
    • s. 36 (statement of amount owing and other matters)42
    • s. 38 (disputed accounts)43
    • s. 83 (statement of payout figure44
    • s. 185 (copies of contracts and other documents)45.

These timeframes also provide a guide to what is reasonable for accounts that are not regulated by the NCCP.

  1. In addition, subscribers to industry codes of conduct may be subject to information and document disclosure requirements.46 Debtors also have a right to access personal information held about them under APP 12 (subject to certain limits).47
  2. If a debtor requests information about an amount claimed as owing, or how that amount has been calculated, you should provide the debtor with an itemised statement of the account clearly specifying:
    • the amount of the debt and how it is calculated
    • details of all payments made and all amounts (including principal, interest, fees and charges) owing and the relevant dates for these transactions.
  3. Except for undisputed amounts, all collection activity should be suspended until the account information and/or documents requested have been provided to the debtor (see part 2, section 13, If liability is disputed).

Responsibility for providing information and documents

  1. Depending on arrangements between the original creditor and its agent or assignee who purchased the debt (assignee), such information may be provided either through the agent or assignee or directly by the original creditor.48

Agents

  1. Original creditors should bear in mind that agents act on their behalf under express or implied authority. This means that the original creditor is ultimately liable for the agent’s actions.
  2. Original creditors and their agents need to have appropriate contractual and operational arrangements in place to facilitate the provision of information and documents. This includes prompt and efficient processes for agents relaying requests to the original creditors, and for the original creditors responding to those requests. When it is arranged for the original creditor to respond directly to the debtor, a discussion should take place between the original creditor and agent to ensure that collection activity is suspended until the account information or documents requested have been provided.

Assignees

  1. If you have purchased debt from the original creditor, you should ensure that you have all relevant information and documents relating to the debt, or are able to access this information or documents from the original creditor within reasonable timeframes or the prescribed time period under the NCC if the credit contract is regulated by the NCCP. You should ensure that the debtor is not disadvantaged by the assignment of the debt.
  2. Original creditors and assignees should ensure that the terms of the assignment include adequate processes to ensure compliance with this guideline and the law.
  3. The original creditor should notify the assignee if the debtor is represented or if there are repayment arrangements in place.
  4. Where the original creditor sells or assigns the debt, the debtor must be informed of the sale. Note that some state-based property legislation prescribes that when a debt is assigned, the assignor must give express notice of the assignment to the debtor in writing.49
  5. Clearly explaining why a party other than the original creditor is involved in the collection of a debt is important to avoid debtor confusion and to encourage a cooperative response. In addition to any other information required by state or Commonwealth laws, your first contact with the debtor should set out in plain English that you have purchased the debt from the original credit provider and set out the consequences of the purchase, including but not limited to relevant contact details, scheduled repayments and any other useful information that can assist the debtor’s understanding of their obligations and options.

42 Information to be provided to the debtor or loan guarantor if requested under s. 36(1) of the NCC:

  1. the current balance of the debtor’s account
  2. any amounts credited or debited during a period specified in the request
  3. any amounts currently overdue and when such amount became due
  4. any amount currently payable and the date it became due.

43 If a particular liability is disputed in writing, the credit provider must explain in writing in reasonable detail how the liability arises: s. 38(1) of the NCC.

44 In response to a written request from a debtor or loan guarantor, a credit provider must provide a statement of the amount required to pay out a credit contract (other than a continuing credit contract facility) at a particular date. Details of items that make up this amount must also be provided if requested: s. 83 (1) of the NCC.

45 This section covers credit contracts, mortgages, guarantees, credit-related insurance contracts in the credit provider’s possession, and notices previously given to the debtor, mortgagor or guarantor under the NCC.

46 For example, subscribers to the Code of Banking Practice must comply with code requirements relating to the provision of copies of documents (cl. 13) and statements of account (cl. 26).

47 More generally, see part 2, section 8, Privacy obligations to the debtor and third parties.

48 Note however the obligations under the Privacy Act. More generally on privacy issues, see part 2, section 8, Privacy obligations to the debtor and third parties.

49 For example, see s. 134 of the Property Law Act 1958 (Vic).

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