When you are in mortgage hardship it can feel unfair that the lender is demanding to be paid when you are doing your best to catch up. Sometimes, there might be more to the unfairness than your inability to meet your mortgage repayments. There may be something unfair about your contract with the lender, or the way the loan was given.
The checklist below is a guide to when the “unfairness” may be worth investigating as a legal complaint with the lender. If some or any of the checklist below applies to you then get legal advice. The checklist does not mean you will win your complaint, it just means you should get legal advice about what, if anything, you can do about it.
Unfairness checklist
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Do you have any concerns about the amount you are being chased for?
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Did the lender or mortgage broker tell you to sign a declaration that the loan was for a business when it was really a loan to refinance your home loan or other personal purposes?
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When you got the loan did the lender or mortgage broker know (or should the lender/mortgage broker have known) you could not afford to repay the loan?
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Were you misled about the loan? e.g. told you could refinance after 12 months to a lower rate when this was not true.
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Did you only sign for the loan to help a family member or friend?
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Did you sign the loan documents and/or the mortgage? If not, you may be the victim of fraud.
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Did someone threaten you into signing documents or getting the home loan?
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Were you unable to read or understand an explanation of the contract? e.g. you don’t speak English or you cannot read.
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Were you unable to protect your own interests when you got the loan? e.g. you were experiencing family violence, or you had some mental or physical health problems at that time.
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Is there anything else that you feel is unfair?
If you answered yes to any of these questions, see Chapter 14: Useful contacts to find some services that can give you legal advice.
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No guarantees
Just because the lender did something unfair does not mean you do not have to repay your home loan. If you received the benefit of purchasing or staying in your home, then you will usually need to at least repay the principle amount of the loan. You may be able to successfully dispute the interest and fees charged by the lender.
Each person’s situation is different – get legal advice.