This fact sheet is for information only. It is recommended that you get legal advice about your situation.
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; or
- You’re concerned the loan was never affordable and you want to check if the lender assessed your loan appropriately.
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.
You can request certain documents and information from the lender under the National Credit Code, which is Schedule 1 of the National Consumer Credit Protection Act 2009 or the “National Credit Act”. To check if the National Credit Act applies to the loan see our Does the National Credit Act apply? factsheet.
The documents and information that borrowers, mortgagors or guarantors can request are:
- The Contract : Under section 185(1) of the National Credit Code, you can request copies of:
- Any loan contract;
- Any credit related insurance contracts in the credit provider’s possession, e.g. consumer credit insurance;
- A copy of any notices previously given to you under the National Credit Code, e.g. a default notice.
- Statements: Under section 36(1) of the National Credit Code, you can request 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.
- How much you owe: Under section 83 of the National Credit Code, you can request a loan payout figure with details of the items that make up the amount, e.g. interest and fees. This is commonly requested if you are refinancing or selling a secured asset and need to know the exact amount you owe at a specific date.
- Application and suitability documents: Lenders and finance brokers are required to make a suitability assessment under section 129 of the National Credit Act before entering into or increasing the credit limit of a credit contract.
The consumer can request a copy of the suitability assessment either before the credit contract is entered, or up until 7 years after the date of the credit contract.
HOW LONG DOES THE LENDER HAVE UNDER THE CREDIT LAW TO GIVE ME THE REQUESTED DOCUMENTS?
- Copies of contracts and notices: If the loan was given less than 1 year ago, the lender has 14 days from the date of the request. If the loan was given over a year ago the lender has 30 days from the date of the request.
- Statement of account: If the loan was given less than 1 year ago, the lender has 14 days from the date of the request. If the loan was given over a year ago the lender has 30 days from the date of the request.
- Payout figure: The lender has 7 days after the request for the payout figure is given to the credit provider.
CAN I BE CHARGED A FEE FOR THE DOCUMENTS?
Yes. In your loan contract (or its terms and conditions) the lender may have set fees to product documents. If you cannot afford the fees, ask that they agree to waive them. If they refuse to waive them, seek advice. Generally if you are disputing that you owe a debt, this will be a factor that should be considered.
HOW DO I ASK FOR THE DOCUMENTS AND INFORMATION LISTED ABOVE?
A sample letter you can use as a guide is available here: Sample Letter: Request for Documents. Keep a copy of the letter you send. You can verbally request the documents, however under the National Credit Act the time for the lender to provide the information is at the written request of the debtor.
WHAT IF THE DEBT IS WITH A DEBT COLLECTOR?
You can still request documents but it may take longer. A debt collector who has bought the debt has the same responsibility as the original credit provider. If you have not paid the debt for a long time you should be careful not to admit you owe the debt, and you should consider reading our Recovery of Old Debts factsheet and using our Old Debt Sample Letter. If you dispute that you owe the debt or the amount, you should review clause 13 of the Debt Collection Guidelines.
WHAT IF THERE IS A COURT JUDGMENT?
The National Credit Act 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 NATIONAL CREDIT ACT DOES NOT APPLY?
You can still request a copy of your documents pursuant to the Australian Privacy Principles (under the Privacy Act): see more information below under Privacy Act.
You may also be entitled to request documents if the lender subscribes to a Code of Practice:
- Code of Banking Practice (at section 11): To check if the lender (a bank) subscribes to the Code of Banking Practice find out here.
- Customer Owned Banking Code of Practice (at sections 12 and 13): To check if the credit provider (a credit union or building society) subscribes to the Customer Owned Banking Code of Practice, find out at their website here.
WHAT DO I DO IF THE LENDER REFUSES TO GIVE ME THE REQUESTED DOCUMENTS?
- Raise a dispute in external dispute resolution and request the documents (see our Dispute Resolution – Financial factsheet) or
- Make an application to the Federal Magistrates Court to obtain an order that the lender must provide the requested documents as required under the National Credit Act. 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 Australian 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 National Credit Act. 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 application and supporting documents
- 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 Australian Information Commissioner Phone: 1300 363 992 or www.oaic.gov.au.
NEED SOME MORE HELP?
See our Getting Help factsheet for a list of additional resources.
Last Updated: February 2018