The options listed below are relevant to secured debts (including mortgages and other loans secured by a car or house). Many of these are discussed in more detail under What are Your Client’s Options.
Your client can apply for a hardship variation under section 72 of the Code. If the creditor does not grant this variation, you can apply to the appropriate External Dispute Resolution scheme or to the court under section 74 of the Code (hardship variation ordered by the court). You should also make an application under section 96 of the Code for an order of postponement by the court. The provisions will only apply if the original amount borrowed is less than $500,000 (for loans entered into on or after 1 July 2010). For loans entered into pre-1 July 2010, a floating threshold applies which currently stands at $421, 520.
Lodging a dispute with the relevant ombudsman will put a hold on further enforcement while the dispute is being resolved. Under the National Credit Act, it is mandatory for credit providers to be a member of an ASIC-approved external dispute resolution scheme. If court proceedings have gone too far, EDR will not be available.
This may be an option even once the creditor has obtained a court order, particularly if the creditor has not previously been made aware of your client’s hardship. If you intend to negotiate on the client’s behalf, you should immediately make an application under section 94 of the Code (application to creditor for postponement of enforcement pending negotiation).
Early release of superannuation
It may be possible for your client to access their superannuation early where they are at risk of losing their home. This should only be done in consultation with a financial counsellor as it may not be in your client’s best interests to diminish their superannuation if they are only going to fall into default under their home loan in the future. For more information about this option go to www.apra.gov.au
When dealing with secured loans and mortgages, keep in mind that prolonging the process and increasing the enforcement costs may put the client in a worse position. You should confirm with the client whether they are going to be able to meet their loan obligations on an ongoing basis. Your client will need to consider whether they should sell the property and repay the loan rather than getting further into debt. A financial counsellor is best placed to provide your client with this advice.