Safety Of Bank Mortgage Claim

Safety of bank mortgage claim is now in question. Three years not making (alleged) outstanding home loan repayments, and the bank still remain silent.

Like a game of chess, who’s playing the next move?

At least in a chess match, you have an idea of your opposition, and all the parts they are using. Playing the same game with a blindfold, on an undetermined geographical plain certainly adds to the challenge.

Rules? What rules.

What happens when the bank staff fail to adhere to key regulations, codes of conduct, and statutory obligations?

These actions, or lacking, can significantly undermine the safety of bank mortgage claim and the debt they are trying to enforce.

What if they violate:

The terms of the National Consumer Credit Protection Act (NCCP Act),
Their own Internal Dispute Resolution (IDR) process, as well as various other consumer protection guidelines like those set out by
- ASIC (Australian Securities and Investments Commission) and
- ACCC (Australian Competition and Consumer Commission).

This opens the door to question the validity of the bank’s claim and may provide strong legal defenses for you.

Here’s how each breach can impact the bank’s claim:

1. Breach of the National Consumer Credit Protection Act (NCCP Act):

The NCCP Act imposes a range of duties on lenders, including responsible lending practices. This includes requirements to:

Verify the borrower’s financial situation before making credit available.
Provide clear and transparent terms about the loan, including the total cost and fees.
Ensure that the loan is suitable for the consumer’s needs.

If the bank fails to comply with these requirements in their mortgage agreement (for example, by

not properly assessing your capacity to repay or
not providing adequate disclosure about the loan’s terms)

This can render the contract itself unenforceable. And this could lead to the mortgage being invalidated. Or at the very least, the bank being required to correct the situation in a way that works in your favour.

2. Failure to Adhere to Internal Dispute Resolution (IDR) Process:

Banks in Australia are required to have an Internal Dispute Resolution (IDR) process to handle complaints. This is a regulated process where the bank must provide a fair and timely resolution to any complaints you make. The fact that:

You reach out with a formal dispute.
The bank ignores your requests or
Fails to direct your concerns to the appropriate team.
Close the matter without a resolution or fail to properly address your dispute.

These actions may be violations of the IDR process.

If the bank staff don’t follow their own rules, it suggests that their failure to adhere to proper dispute resolution has compromised their ability to enforce the mortgage and claim any amounts owed.

3. Breach of ASIC Debt Collection Guidelines Threatens Safety of Bank mortgage claim:

ASIC has clear guidelines about debt collection, stressing that debt collectors should:

Act fairly and reasonably when contacting debtors.
Provide clear and honest information.
Not engage in misleading or deceptive conduct, or
Exert undue pressure.

If the bank (or their debt collectors) engage in harassing or deceptive practices such as

continuing to demand payments without providing proof of the debt, or
making threats not backed by evidence

This could constitute a breach of the ASIC debt collection guidelines, opening the bank up to regulatory scrutiny.

It could also potentially be used as part of a defense or counterclaim for harassment or unfair debt collection practices.

4. Failure of Bank Mortgage Claim under Corporations Act:

The Corporations Act regulates the conduct of financial services and sets out rules for corporations about their duties toward clients. If the bank

Acts in a misleading or deceptive manner.
Fails to comply with their duties under the Act (including disclosure of terms, fees, and charges)
Breach of fiduciary duties or
Act unprofessionally in any capacity in relation to the mortgage contract,

The bank could be in violation of the Corporations Act.

Any such violation might weaken their legal standing and raise questions about the integrity of their claim.

Additionally, if the bank’s actions violate corporate governance or transparency regulations, this undermines the trustworthiness of their claim that you owe the bank money.

5. Breach of the Australian Consumer Law (ACCC Act):

The Australian Consumer Law,, as part of ACCC Act, focuses on ensuring that consumers are not subject to unfair, deceptive, or unconscionable conduct by businesses. If the bank

Engages in misleading advertising,
Fails to act transparently, or
Exploits your position to their advantage (such as not properly communicating the risks or benefits of the loan, or unfairly escalating fees or charges).
Uses unfair tactics in debt recovery or foreclosure processes.

These actions could violate the ACCC Act, particularly if the breaches result in harm or disadvantage to you.

ACCC enforces strict consumer protection rules. Any breaches could result in serious legal consequences for the bank, including the potential for you to counterclaim for damages or to have their claim invalidated.

How These Breaches Impact the Bank’s Mortgage Claim:

If the bank violates these laws and regulations, the enforce-ability of their mortgage claim may be in question. Here’s how:

Un-enforce-ability of the Contract:
- If the mortgage was signed under misleading circumstances or
- if the bank fails to provide required disclosures or
- engages in responsible lending practices,

the contract may be unenforceable or subject to rescission (cancellation).

This could nullify the mortgage itself.

Failure to Provide Proof of Debt:

If the bank can’t provide audited accounts or proof of the debt, as requested, they may have no legal standing to continue the claim.

The absence of supporting evidence combined with regulatory breaches could undermine their entire case.

And a court could rule in your favor on these grounds alone.

Damages for Unfair Practices:

If the bank harasses you, fails to adhere to debt collection regulations, or engage in unconscionable conduct, this could form the basis for a counterclaim.

You may have grounds to pursue damages or request compensation for their unfair practices.