This fact sheet is for information only. It is recommended that you get legal advice about your situation.
Download our printer friendly version here (PDF): Copies of Loan Docs
A married couple, Jane and John had a joint home loan. Jane and John separated. Jane agreed with John when she left that he would take care of the loan. It is now 6 months later and Jane has just discovered that John has not been paying the loan. Jane panics about losing the house. She has no idea what she owes or what’s been happening with the loan.
There are many reasons why you may want to obtain copies of loan documents and account information. It is recommended that you ask for copies of loan documents and account statements when:
- You no longer have copies of your loan documents for any reason, such as they have been lost or taken by someone else such as a joint borrower; or
- The debt is very old.
HOW TO GET YOUR LOAN DOCUMENTS
If you need copies of your loan documents, you should decide exactly what documents or information you want from the lender.
REMEMBER, YOU DON’T HAVE TO:
- Explain why you do not have the documents;
- Explain why you want the documents;
- Obtain the consent of any joint borrower.
Under the National Credit Code (NCC) (Schedule 1 of the National Consumer Credit Protection Act 2009 (the “credit law”) you can request certain documents and information from the lender. To check if the credit law applies to the loan see Fact Sheet: Does the National Credit Law apply?
The documents and information that borrowers, mortgagors or guarantors can request are:
- (SECTION 185(1) NCC)
- Any loan contract;
- Any credit related insurance contracts in the credit provider’s possession. For example, consumer credit insurance;
- A copy of any notices previously given to you under the NCC. For example, a default notice.
- (SECTION 36(1) NCC)
A statement of the following:
- Current balance of your loan account(s);
- Any amounts credited or debited during the term of your loan contract(s);
- Any amounts currently overdue and when they became overdue;
- Any amount currently payable and the date that it became due.
- (SECTION 83 NCC)
A loan payout figure with details of the items that make up the amount. For example, interest and fees.
HOW LONG DOES THE LENDER HAVE UNDER THE CREDIT LAW TO GIVE ME THE REQUESTED DOCUMENTS?
- Copies of contracts and notices (section 185 NCC): 14 days from the date of the request if the loan was given less than 1 year ago or within 30 days from the date of the request if the loan was given more than a year ago.
- Statement of account (section 36 NCC): 14 days from the date of the request if the loan was given less than 1 year ago or within 30 days from the date of the request if the loan was given more than a year ago.
- Payout figure (Section 83 NCC): the credit provider has 7 days after the request for the payout figure is given to the credit provider. Refinancing to save money on your home loan or to borrow more money on your home loan
Lenders and Finance brokers are required to make a suitability assessment under s129 of the credit law before entering into or increasing the credit limit of a credit contract.
The consumer can request a copy of the credit assessment either before the credit contract is entered, or up until 7 years after the date of the credit contract. If you are considering challenging a loan as either unjust or unsuitable, you should request a copy of the assessment.
CAN THE LENDER CHARGE A FEE?
Yes. Get legal advice if a lender is seeking to charge you fees.
HOW DO I ASK FOR THE DOCUMENTS AND INFORMATION LISTED ABOVE?
A sample letter you can use as a guide is Sample Letter: Request for Documents. Keep a copy of the letter you send.
WHAT IF THERE IS A COURT JUDGMENT?
The credit law does not apply to requesting documents. The lender does not have to supply the documents but usually will if the documents are requested. Get advice if the lender refuses to supply the requested documents.
WHAT IF THE CREDIT LAW DOES NOT APPLY?
You can still request a copy of your file pursuant to the Privacy Principles (under the Privacy Act). You may also be entitled to request documents if the credit provider subscribes to a Code of Practice:
- Code of Banking Practice (section 11) (www.codecompliance.org to check if the credit provider (a bank) subscribes to the Code of Banking Practice)
- Customer Owned Banking Code of Practice (section 19) (www.customerownedbanking.asn.au to check if the credit provider (a credit union or building society) subscribes to the Customer Owned Banking Code of Practice)
WHAT DO I DO IF THE LENDER REFUSES TO GIVE ME THE REQUESTED DOCUMENTS?
- Raise a dispute in EDR and request the documents or
- Make an application to the Federal Magistrates Court to obtain an order that the credit provider must provide the requested documents as required under the Credit Law. Get legal advice before you do this.
As a general rule, everyone can get copies of information contained in their “personal file” held by the lender under the Privacy Principles contained in the Privacy Act. The Privacy Act governs the handling of personal information by the government and business. The Privacy Act may be useful if your loan is not covered by the credit law. We recommend you quote the Privacy Act in any request for documents or information.
THE TYPES OF INFORMATION THE LENDER HAVE IN YOUR “PERSONAL FILE” ARE:
- A copy of your loan contract
- All letters the lender has sent you
- All letters you have sent to the lender
- File notes of all conversations you have had with the lender
- Your loan account statements
IF YOU MAKE A REQUEST UNDER THE PRIVACY ACT:
- The lender can charge you a reasonable fee for retrieving, copying and sending you the information
- The information must be provided within a reasonable time.
- If you need the information urgently, you can make arrangements with the lender to view your file
If you cannot get a copy of your “personal file” you can complain to the Federal Privacy Commissioner Phone: 1300 363 992 or www.privacy.gov.au.
NEED SOME MORE HELP?
See Fact Sheet: Getting Help for a list of additional resources.
Last Updated: February 2017