Debt collection guideline: for collectors and creditors

17. Conduct towards the debtor or their representatives

  1. A debtor is entitled to respect and courtesy, and must not be subject to misleading, humiliating or intimidating conduct by a creditor, debt collector or any of their agents or representative. Such conduct is likely to breach the law.
  2. You should never:
    • use abusive, offensive, obscene or discriminatory language
    • make disrespectful or demeaning remarks about a debtor’s character, situation in life, financial position, physical appearance, intelligence or other characteristics or circumstances
    • embarrass or shame a debtor—for example, by sending open correspondence to a shared post-box, posting messages for the debtor in a public online forum (for example, using social media sites), making the debtor’s employer or co-workers aware that the debtor is being pursued for a debt, or creating an impression that the debtor is under surveillance61
    • adopt an aggressive, threatening or intimidating manner—for example, by shouting at or continually interrupting the debtor, or by refusing to listen to what the debtor has to say
    • use, or threaten to use, violence or physical force against a debtor, third party or against property62
    • mislead a debtor about the nature or extent of a debt, or the consequences of non-payment.63

CASE STUDY

A company was found to have engaged in false and misleading conduct and unconscionable conduct, and to have used coercion to obtain payment for mobile services when it created a fictitious complaints handling body, a fictitious debt collection agency and made false statements about the consequences of non-payment to coerce debtors to pay the alleged debt.

ACCC v Excite Mobile Pty Ltd [2013] FCA 350

  1. Inappropriate behaviour by a debtor does not justify unprofessional conduct by the collector.
  2. Where possible, you should attempt to defuse such behaviour and refocus discussion on the outstanding debt and arrangements for its repayment. Where a debtor displays inappropriate behaviour, we recommend the matter be escalated to a senior staff member who is trained to manage such situations.
  3. Debtor frustration or anger is more likely to be contained where viable and achievable repayment arrangements are proposed. In the event of violence or other extreme conduct, the appropriate response is to cease contact immediately and refer the matter to the police.

CASE STUDY

A company was found to have breached the prohibitions against harassment and coercion when its agents pinned a man to the ground during a vehicle seizure, even though the company had a contractual right to seize the debtor’s vehicle. The court found this to be the case notwithstanding the fact that the man threatened the agents with assault.

ACCC v Davis [2003] FCA 1227


61 Such actions may also involve a breach of the collector’s privacy obligations to the debtor: see part 2, section 8, Privacy obligations to the debtor and third parties.

62 Such threats or actions may constitute criminal conduct.

63 See further under part 2, sections 19, Representations about the consequences of non-payment, 20 Representations about the legal status of debt, including statute-barred debt and 21, Legal action and procedures.

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