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Legal > Civil & Commercial Litigation

Mortgage Disputes:

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There are times when a mortgagor or a lending bank may be in breach of its obligations and responsibilities to the borrower or mortgagee. During times of economic recession, the financial markets may experience higher rates of people defaulting on their loans due to their inability to make timely repayments. Irrespective of what the circumstances may be, the Banking Code of Conduct sets principles with which banks must comply when dealing with the public and their clients. According to the website of the Australian Bankers’ Association:

The Code of Banking Practice is the banking industry's customer charter on best banking practice standards.

The Code sets out the banking industry's key commitments and obligations to customers on standards of practice, disclosure and principles of conduct for their banking services. The Code applies to personal and small business bank customers.” [1]

A complaint may be made directly to the Code Compliance Monitoring Committee for alleged breaches of the Code. [2] For more information about breaches of the Code, see our “Banks” overview page in the “Consumer & Negligence Law” section of this website.  A mortgagee disputes solicitor will have the professional experience and skills for the preparation of evidence on which a complaint against a Bank can be made.  All complaints against Banks must be grounded in some form of proof of claim. An experienced mortgagee disputes lawyer will understand how to prepare the necessary information and material for the Committee’s attention.

Another forum in which an attempt at resolving a mortgagee dispute can be made is AFCA. A dispute may be lodged there, however it is recommended that the aggrieved party attempts to resolve the matter with the lending institution first before taking formal steps at the AFCA. [3] A mortgage disputes law firm will have the resources necessary to deal with simple as well as complex cases dealing with lending contracts and financial agreements. In the event that a mortgage dispute is not resolved, litigation before the courts may be another option to pursue.

Litigation can be expensive, stressful and time-consuming. Nevertheless, when a case is made, particularly against a Bank or some lending institution, all aspects must be attended to in detail before any statement of claim or application or Summons is filed. Bank litigation in particular can be costly, which is why, where appropriate and possible, the litigation team at Navado focuses on attempting to resolve the dispute as quickly as possible through negotiated settlements of the complaints processes with the Code Compliance Monitoring Committee or AFCA, before any formal matter is filed with the courts.

One simple way to deal with a claim by a Bank or lending institution is to find a defect in form or process and if appropriate and possible, use that as the basis for a defence or even a counter-claim. This aggressive litigation approach is a hallmark of the Navado practice. Of course, such a tactic must be exercised within reason and no vexatious or malicious claims will be considered or entertained by the Courts.

The banking litigation team at Navado has members who have experience in both commercial litigation and civil litigation. This creates a synergistic cross-disciplinary legal front for any complex banking or financial dispute matter. Clients benefit by having litigation solicitors who share a knowledge pool form varying practice areas. This results in our ability to consider and assess a case from different perspectives and possibly find angles of attack or defence (whichever the case may be) which might otherwise not have occurred to a specialised banking legal practitioner.

If you require assistance with a mortgage disputes matter, you may wish to contact our office and make an appointment to see one of our solicitors in our Sydney officez.

[1] “Code of Banking Practice” Australian Bankers’ Association website (undated) <www.bankers.asn.au> (accessed 2 December 2013).

[2] Ibid.

[3] “How to Lodge a Dispute” Financial Ombudsman Services website (undated) <www.fos.org.au> (accessed 2 December 201)

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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