Unfair loans - Mortgage stress

Mortgage stress logoWhen you are in mortgage hardship, there might be more to the situation than just your inability to meet your mortgage repayments. You may think there is something unfair about your contract with the lender, or the way the loan was given. 

If you think the lender or mortgage broker has done something unfair, you might want to apply for a hardship variation and also lodge a complaint about the lender with the Australian Financial Complaints Authority (AFCA).

Warning!

Just because the lender did something unfair, this 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 repay the money you borrowed. You may be able to successfully dispute the interest and fees charged by the lender.

You should get legal advice if you think your lender or mortgage broker has acted unfairly.

What are some signs that a loan might be unfair?

This checklist is a guide to when the behaviour of a lender or mortgage broker may be worth investigating as a legal dispute with the lender.

You should get legal advice if you answer 'Yes' to any of the questions below. This does not mean your loan is actually unfair, or that you will win your dispute with the lender. It just means you should get legal advice about what, if anything, you can do about it.

  • Is the amount being claimed incorrect?

  • Have any of your repayments not been credited against the loan?

  • Did you sign a declaration stating that the loan was for business/investment purposes, when it was not for that purpose? For example, 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?

  • When you got the loan, did the lender or mortgage broker know (or should the lender/mortgage broker have known) that you could not afford to repay the loan?

  • Were you misinformed about the loan? For example, were you told you could refinance after 12 months to a lower rate and this was not true.

  • Did you only sign for the loan to help a family member or friend?

  • Did someone else sign the loan documents or the mortgage under your name? You may be the victim of fraud.

  • Did someone threaten you into signing documents or getting the home loan?

  • Were you unable to read or understand an explanation of the contract? For example, you don’t speak English or you cannot read.

  • Were you unable to protect your own interests when you got the loan? For example, you had some mental health problems at that time.

  • Is the loan unjust because of other circumstances that are not covered above?

 

Useful documents

Get help with mortgage stress

Where to get legal advice and financial counselling to help with mortgage stress.

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Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.