Chapter 2: Is my problem urgent?

Your right to make a repayment arrangement depends on where the lender is up to in the process to take possession of your home. Chapter 3: Can the lender take my house? describes the steps the lender must take to get possession of your home.

To work out what to do next you need to know:

• Has a default notice been sent to you? The default notice must give you at least 30 days to repay the arrears (the amount you are behind in repayments plus your normal repayment due that month).
• Have you received a statement of claim or summons from the court for possession of your home and/or the amount outstanding on your home loan? If so, when did you receive the statement of claim/summons? If you received a document called a notice to occupier, you may find the statement of claim or summons under that document.
• Has the lender obtained judgment from the court? If you received court documents some time ago, check with the court to find out if the lender has obtained judgment.
• The lender can apply for judgment at any time after the time for response to the court proceedings has expired. Details for contacting the court will be on the court documents. You may need to tell the court officer some details included in the court paperwork, so make sure you have it with you when you ring. See Chapter 14: Useful contacts for court contact details.
• Have you received a notice from the court or Sheriff telling you to vacate your home? Does it have a date and time listed for the eviction?

Australian Financial Complaints Authority

All home loan lenders must be members of the Australian Financial Complaints Authority (AFCA) – this is a free and independent complaint resolution scheme. AFCA can help with a range of complaints, including financial hardship or other issues with the loan.

AFCA can also investigate the lender’s conduct in relation to its hardship obligations, including those set out in the Banking Code of Practice, and may make a formal decision that’s binding on the bank if the decision is accepted by the borrower. The details are:

• Australian Financial Complaints Authority (AFCA)
• 1800 931 678 (free call)
• www.afca.org.au

When should I lodge a complaint with AFCA?

If you are unsure where you are up to in the possession process, you should consider lodging a complaint with AFCA immediately because:

• AFCA is free,
• the lender cannot start or continue legal action while your matter is being considered by AFCA, and
• it will give you the opportunity to negotiate with the lender (with the assistance of AFCA).

It is best to lodge a complaint with AFCA before a court judgment is entered. A judgment is considered entered when it is recorded in the court’s computerised record system, or signed and sealed by a judicial officer or registrar.

If you lodge with AFCA after judgment is entered, AFCA can only require the lender to give you extra time to refinance or sell the home, or to move if you are facing personal hardship (such as temporary serious illness or incapacity). AFCA can no longer give you a payment arrangement to remain in the home. If you receive court documents you must lodge a complaint with AFCA immediately, as they will not be able to review that complaint once judgement is entered except in this limited way. See Chapter 7: Lender says no to repayment arrangement for how to lodge a complaint with AFCA.