Released every month our debt collection blog contains news, stories and tips to keep you informed.
If you have worked in the debt collection industry for any period of time you would have spoken with people who believe that bankruptcy is the only way out of a financial mess.
While this may be the case for some people, at times they may not be fully educated about the consequences of taking this path with an emotional decision being made rather than a rational decision. We are not implying that it is your role to talk someone out of bankruptcy, however, always ask the person whether or not they understand the consequences of their decision. So what are these consequences?
Bankruptcy Can Impact Income and Employment
A person earning over the indexed amounts may be required to make compulsory payments to the Trustee. The base income threshold amount for a person with no dependents is currently $57,866.90 with the index rising to $78,698.98 for person supporting over 4 dependents. Compulsory payments are calculated by the Trustee and can be paid to creditors to reduce their liability.
While bankruptcy does not stop someone from being employed there are professions that impose restrictions and licence conditions on bankrupts. Some professions do not allow the management of Trust Accounts such as those held by accountants or Solicitors by a bankrupt nor can a bankrupt be a Director of a company, manage a company or hold certain public positions.
Not All Debts Are Released
Most unsecured debt are covered once a person files for bankruptcy however not all. Some exceptions include Child Support, HECS and HELP debts, penalties imposed by Courts and fines. Debts owing to Centrelink, the ATO, Victims of Crime and some toll fines may not be covered and enquiries should be made by the bankrupt to see if the bankruptcy covers them.
A Life on the National Personal Insolvency Index (NPII)
As a bankruptcy a record is maintained on the NPII for life. This is a searchable public register that records insolvency proceedings in Australia.
Obtaining Future Credit
Some creditors ask if a person has ever been bankrupt. This must be disclosed at the time of the application. Credit Reporting Bodies also keep a record of personal insolency for 5 years from the date of bankruptcy or 2 years from when the bankruptcy is discharged by law (whichever is later).
The indexed amounts pertaining to credit limits allow a bankrupt to apply for credit, such as goods or services on credit, hire purchase, leases, etc up to $5,778. Amounts over and above this the bankrupt must disclose they are bankrupt to the organisation providing them with credit.
Restricted Overseas Travel
Planning an overseas holiday? As a bankrupt permission must be sought from the Trustee to travel overseas. It is an offence to travel overseas without obtaining written consent from the Trustee.
Assets Can Be Sold
The Trustee in Bankruptcy may elect to sell assets, including real property, in which to satisfy creditors. Any assets must be declared to the Trustee and these assets must not be disposed of by the bankrupt.
Discharge of Bankruptcy
Bankruptcy usually last for 3 years and 1 day from the date the person files for bankruptcy or, where a creditor commences the bankruptcy proceedings, 3 years and 1 day from the date the Statement of Affairs is filed. In some cases a Trustee may apply to the Court to extend the automatic date of discharge for up to a period of 8 years.
This is not an exhaustive list of the restrictions that a Trustee may impose on a bankrupt. This list has been provided in good faith so that you may better educate people you come across in your day-to-day role about the possible consequences of their decision.
If you have any questions we urge you to speak with a qualified legal practitioner, Trustee or Collection Law Partners.
Disclaimer: This article is general information only and does not constitute legal advice and is not intended to be relied on in any way.
As most of our subscribers are aware we have released our newsletter every month for the last 10 years and have released over 550 free articles covering debt collection news around the world as well as debt collection tips and advice.
We have decided that our blog and newsletter will now be released quarterly following this issue.
We hope that this change will result in more feature packed articles and news. If there are industry specific changes that we believe will have an impact on our industry we will release this information via our social networking channels on Facebook and LinkedIn.
We thank you for your continued support and loyalty and look forward to continuing to provide this free service.
A local council in Perth has recently waived in excess of $760,000 in debt because staff overlooked referring the debts to their debt collection agency.
The Town of Victoria Park found that 11,148 unpaid fines, mainly from parking infringements, had failed to be outsourced for collection after a clerical error was discovered. Of those discovered as being unpaid 8,000 were uncollectable due to the limitation period expiring. With the oversight identified council wrote to the 1,000 of the larger unpaid debts demanding payment however only 49 were paid returning the council $6,617.
With council estimating that approximately $3,000 had been spent in attempting to recover the debts, which did not account for staff time, Councillors made the decision not to pursue the debt and agreed to write-off $767,199.13 at the June council meeting. Cr Karen Vernon stated that the unrecoverable debt was "disappointing on so many levels" as the money could have been utilised to make a difference to significant community projects or to pay down further debt owed by the council. Town of Victoria Park would not confirm to the Southern Gazette if any council staff were dismissed over the error.
In a statement to the media, Victoria Park Chief Executive Anthony Vulete said that their debt collection policy and practices were being reviewed and accepted that the situation was an administrative failure.
Debtors in the UK are to benefit from a new scheme where they will be provided 60 days grace from debt collectors and Bailiffs.
In an article that appeared in The Sun, people who are struggling with significant debt to local government bodies, such as tax arrears, personal tax debts and benefit overpayments, will have their debts frozen with all enforcement action also stopped. The scheme, which is due to be launched in 2021, is designed to provide the financially disadvantaged with time to find long-term solutions to their financial problems. During the "breathing space" period, which is what the scheme is being called, those debtors must work with professional financial counsellors to reach solutions to get back on track with their repayments.
The "breathing space" program also includes a "statutory debt repayment plan" which allows those in debt to repay debt over a more manageable period and could see monthly repayments adjust according to their disposable income.
Debt charity, StepChange, revealed in April of this year that 657,000 people had sought their assistance in 2018 and applauded the moves by HM Treasury.
ZDNET is reporting that the debt collection agency, American Medical Collection Agency (AMCA), has filed for bankruptcy protection following a major data breach.
The breach, which is estimated to have occured from August 2018 to March 2019, resulted in the theft of information from corporate clients which included Sunrise Laboratories, BioReference Laboratories, LabCorp and Quest Diagnostics. The companies used a portal provided by AMCA to bill their medical customers which was later found to have been stolen and advertised for sale in dark web forums.
Following the disclosure of the breach multiple class-actions werre filed against not only AMCA but also the corporate clients with victims claiming that there were unnecessary delays in informing victims. According to the Chapter 11 declaration that was filed, AMCA first became aware of the breach when a number of credit cards were linked to fraudulent transactions. While the portal was closed and an investigation launched, the data breach caused AMCA to lose a number of clients and a massive reduction in business. ACMA has since been unable to determine exactly what data has been compromised and has been forced to absorb the cost in informing several million people by mail that their data may have been stolen. It is estimated that this alone has cost ACMA US$3.8 million forcing AMCA to take out a loan just to meet this expense.
AMCA will continue trading at this point in time as they seek to pay off their Creditors.
The Australian Financial Complaints Authority (AFCA) has recently released a snapshot of statistics following their first 5 months of operation.
The release of these statistics follows an article, 'Appalling Treatment': Bank Customers Making 5,900 Complaints a Month in the Sydney Morning Herald where the Chair of AFCA, Helen Coonan said in a speech allegedly seen by The Sydney Morning Herald and The Age, "Poor culture in financial institutions has been identified as the main culprit that permitted a slew of bad practices, appalling treatment of consumers and small businesses, and in many cases arrogant indifference to regulatory and compliance risk. Now almost seven months old, AFCA is playing an important part in restoring shattered community trust and confidence in the financial services sector."
The statistics show that between 01/11/0218 and 31/03/2019 AFCA -
Mirage News is reporting that the Australian Financial Complaints Authority (AFCA) has welcomed the news from the Australian Securities and Investments Commission (ASIC) that financial service providers will be required to supply standardised data on their internal processes for handling customer complaints.
The proposed standard, which is pending public consultation, will include new mandatory data reporting with FSPs required to meet new standards when a complaint goes through the Internal Dispute Resolution (IDR) process with a view to make complaints handling performance transparent. In making the announcement, ASIC Deputy Chair Karen Chester, said, "It is widely acknowledged there is room for much improvement when it comes to handling consumer complaints in our financial system. The Ramsay Panel Review, recent ASIC research, case studies before the Financial Services Royal Commission (FSRC) and our own supervisory work have all identified shortcomings in consumer complaints handling. Consumers expect and need a fair, timely and effective way to have their complaints dealt with, and to be provided redress where appropriate. The absence of such effective redress, and the failure of firms to identify and look into systemic complaints, were key findings of the FSRC and the Prudential Inquiry into the CBA. With the benefit of broad consultation, ASIC’s new standards will lift complaints handling performance of firms and ultimately consumer outcomes and fairness of the financial system. And transparently so. These standards will also apply in their entirety to all APRA regulated superannuation funds".
In response to the news, AFCA Chief Ombudsman and CEO David Locke said, "Increased transparency is good news. It will help firms to continuously improve, and that will be good for the firms and their customers alike. We also welcome the idea of requiring firms to provide a standard set of data – this will help companies know how they compare to their competitors and help to inform consumers about the companies they’re dealing with. In this digital age, the move by ASIC to require firms to include complaints made on social media platforms, is entirely appropriate".
ASIC has sought public input on the consultation documents by 9 August 2019 and aims to release the new standards in a new Regulatory Guide by the end of 2019. You can find out more and read the media release by ASIC at ASIC Media Release 19-115MR
Following on from last month where we looked at the AFCA Approach to Mortgagee Sales this month we look at the Australian Financial Complaints Authority (AFCA) approach to Financial Difficulty - Early Release of Superannuation.
The purpose of this article is to summarise the approach AFCA have regarding the early release of superannuation and what lenders obligations are when considering a request from a consumer to support the early release of superannuation.
Grounds for Release
There are 2 primary circumstances where a consumer may apply for the early release of superannuation. These are due to several financial hardship or compassionate grounds (mortgage arrears). A consumer that has been in receipt of a Government support payment, such as Newstart Allowance, continuously for 26 weeks may be entitled to the early release of superannuation on the grounds of financial hardship. A consumer may access between $1,000 to $10,000 once a year and the application must be made directly to their superannuation fund. The payment can be utilised for any purpose and does not require the support of the FSP.
Where the application is being made on compassionate grounds (mortgage arrears) the process is administered by the Australian Taxation Office (ATO). A consumers application to the ATO for payment of mortgage arrears will need a letter from their FSP stating that the amount is overdue and if the overdue amount is not paid by the due date the mortgagee will foreclose or force the sale of the consumers principal place of residence. More information is available from Access on Compassionate Grounds on the ATO website.
There is an expectation from AFCA that FSPs will consider alternatives rather than simply supporting a request for the release of superannuation as the release of superannuation is a last resort. AFCA expects FSPs to take appropriate steps to understand the consumers financial position, decide what assistance it can provide the consumer and communicate its decision to the consumer.
Factors to Consider
When considering if support should be given for the early release of superannuation the FSP, , should explore all alternative options -
Where it is apparent that the consumer can afford to continue with the contractual repayments but unable to clear the arrears the FSP may consider it more appropriate to capitalise the arrears.
Where the FSP is unable to determine if the consumer can meet their ongoing contractual obligations it may be more appropriate for the FSP to provide a reasonable moratorium period to allow the consumer time for their situation to improve.
Where it is clear that the consumer will be unable to meet their ongoing contractual obligations supporting a release for superannuation may not be appropriate as any release will only delay the inevitable. In certain situations it may be beneficial for the FSP to allow the consumer time to sell the security property which will preserve their superannuation and may offer some financial relief.
Failing to Meet Obligations
Where AFCA believe that the FSP has failed to meet their obligations AFCA may rule that the FSP has failed to meet financial difficulty obligations under the AFCA Rules. Where the consumer has suffered a financial loss AFCA may award compensation.
Where the FSP has supported an early release for superannuation that AFCA believe inappropriate they will generally not require the FSP to refund the superannuation monies or reimburse any tax paid as a result of the withdrawal of the funds as in most cases the consumer will have obtained the benefit of the funds and will have potentially saved on interest, fees and charges.
To learn more or to read this article in its entirety visit AFCA Approaches - Early Release of Super.
Disclaimer: This article is general information only and does not constitute legal advice and is not intended to be relief on in any way.