Credit and Debt

Credit and Debt

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Getting relevant documents

Documents from creditors or suppliers

If your client does not have copies of relevant documents relating to their consumer contract or their credit contract (including the contract itself), you should write to the creditor to request this documentation. 

In relation to consumer credit contracts (i.e. if your client's legal problem relates to, for example, a credit card or a personal loan):

  • this template letter can be used, which requests information required to be provided under the Code, including:
    • under section 185 of the Code:
      • the credit contract; 
      • copies of any notices sent to the client; 
      • any credit related insurance contract;
    • under section 34 of the Code, a statement of:
      • the current balance of the account;
      • the amounts credited or debited and any fees and charges during a specified period;
      • any amounts overdue and when each amount became due; and 
      • any amount payable and the date it became due; and
    • under section 83 of the Code, a statement of the amount required to pay out the client's credit contract and details of items that make up this amount;
  • if the creditor does not provide the information you require within the specified time period (14 days if the information requested is less than a year old and 30 days if that information is more than one year old), you can complain to the relevant external dispute resolution scheme (section 185(2) of the Code).

It is possible that the credit provider or company will charge a fee to access this documentation. 

In relation to contracts for goods and services (for example, mobile phone contracts), you should call the hardship team at the relevant service provider and request copies of, for example, the written contract, latest bills and any correspondence with your client, including reminder notices or default notices. If necessary, fax a request to the relevant contact person at the service provider using this letter. In most cases, the supplier is required to provide proof of transaction and an itemised bill under sections 100 and 101 of the ACL.  

Credit reports

A credit report contains information about a person's credit history, including their requests for loans (including applications for mobile phones and utilities), late payments (of 60 days or more), unpaid debts and any court judgments or bankruptcy orders made against that person.  Lenders use credit reports to decide whether or not they will provide credit to people and, if they decide the person is a high risk, they might refuse a loan application or charge a higher interest rate. 

A sample credit report is available here.

Your client's credit report will help both you and the client get a picture of their debts and credit history.  It will also give the client an opportunity to confirm that their credit report is accurate. 

The Privacy Act 1988 (Cth) regulates what information can be held and for how long:

  • credit applications, overdue accounts and court judgments can be kept for five years; and
  • bankruptcy orders, debt agreements and "serious credit infringements" (which means that the creditor has recorded that they have a reasonable belief that the person intends to avoid paying the debt) can be kept for seven years.

Anyone who has applied for or had a loan or a telephone or utility account in the last five years is likely to have a credit report.  Private credit reporting agencies hold credit reports.  The two main credit reporting agencies in Australia are Veda Advantage (previously called Baycorp Advantage) and Dun & Bradstreet (Australia) Pty Ltd

You should request a copy of your client's credit report to get a picture of their debts and credit history.  You can do this by:

Credit reports will be provided for free within 10 working days.  If you need the credit report faster than this, a fee of approximately $30-$40 will be charged.  

You should tell your client that, once you apply for a credit report, their contact details will become available to any lenders checking their report. 

The websites for Veda Advantage and Dun & Bradstreet also provide information regarding how to rectify inaccuracies on a person's credit report.  The Privacy Act 1988 (Cth) requires credit reporting agencies and credit providers to make appropriate amendments to ensure that a person's information is accurate, up to date, complete and not misleading. Wrong listings on a client's credit report should be changed for free, however, the client will need to establish that the listing is inaccurate or out of date.  If your client instructs you to correct inaccurate or out of date information on their credit report:

  • contact the credit reporting agency first - they may be able to fix small errors straight away;
  • contact the credit provider - explain why the listing is misleading or wrong. If they don't fix the problem, you can go to the credit provider's External Dispute Resolution scheme; and
  • contact the Privacy Commissioner - if the listing is still wrong, a complaint can be lodged with the Office of the Australian Information Commissioner (within 12 months of the date the client became aware of the problem).

Expert reports

It will also often be necessary to obtain expert reports setting out the client's circumstances (for example, financial hardship, homelessness, mental illness, drug and alcohol dependency). 

If your client has a GP, social worker, case worker, psychologist, drug and alcohol worker or psychiatrist, you should call or write to these people to request a short report that sets out details such as:

  • an explanation of the expert's role and relationship with the client (including how long they have been seeing the client for, in what capacity and how often);
  • information about the client's circumstances and hardship;
  • any details regarding the client's limited earning capacity;
  • relevant statements about the impact pursuing the debt is having on the client's wellbeing; and
  • information about the client's engagement with treatment or support services.

A sample letter requesting a medical report is available here.

Many services charge a substantial fee for the provision of these reports.  You should clearly point out in your request that you are providing the legal services on a pro bono basis and the client is not able to pay for the report.  If the expert refuses to provide the report free of charge, there may be some funding available for Homeless Law clients.  Call the Homeless Law Homeless Persons' Liaison Officer to discuss this. 

If your client does not have a current GP, social worker, case worker, psychologist, drug and alcohol worker or psychiatrist, you should use the Service Directory and contact the Homeless Law Homeless Persons' Liaison Officer for assistance linking the client in with the support services they require.  

If you book your client in to see a financial counsellor, encourage them to take (if possible): details of their income, bank balance statements, a list of the companies or people they owe money to, all loan agreements and finance contracts, current and outstanding bills and any court documents received and other letters about bills and debts that seem urgent.