Monday, July 06, 2009

Chasing up clients for late payments

Some really useful info and guidelines for current economic climate:

source:Debt collection guideline for collectors and creditors: joint publication by ACCC and ASIC

Full guide here

21. Legal action and procedures
[a] This section should be read in conjunction with part 2, sections 19 and 20 of
this guideline.
[b] Creditors and their agents have a right to pursue debts through the courts.
However, in pursuing or threatening to pursue legal action you must comply
with the consumer protection laws.
[c] Do not make misrepresentations about the legal process. For instance, do not:
• misrepresent the nature or purpose of correspondence. Ensure the layout,
wording and design of documents (for example, letters of demand) are not
likely to create the impression that they are court process or other court
documents, or that they come from a solicitor’s offi ce, when this is not
the case73
• suggest that telephone calls are recorded ‘for training purposes’ (and, by
implication, only for such purposes) when those calls may also be used
as evidence
72 See Offi ce of the Privacy Commissioner website at:
73 See also s. 26(2)(a),(c),(f)(g) Fair Trading Act 1992 (ACT); s. 21(2)(a),(b),(c)(f) 2 Fair Trading Act 1999 (Vic.); and 9
s. 43(2)(c) Fair Trading Act 1987 (SA). These provisions relate specifi cally to misrepresentation regarding 7
documents, court process etc.

• misrepresent that failure to pay a debt (where no fraud is involved) is a criminal
or police matter, or is likely to be referred to the police74
• misrepresent that you are a police offi cer, court offi cial, or have some offi cial
capacity that you do not have to claim or enforce payment of a debt
• state or imply that unsecured basic household items can be seized if the debtor
is made bankrupt
• state or imply that you have instructions to start legal proceedings when this is
not intended, or you have received no such instructions
• state or imply that legal action has already been taken, or judgment entered,
when this is not case.
d] In certain circumstances the way legal action is threatened or employed can
amount to unconscionable conduct or harassment. For instance, this may be the
case if you start or escalate court action against a debtor when you have agreed
not to, or when a payment arrangement is in place and is being complied with.
e] When you know or can reasonably obtain the debtor’s current address, we
recommend that you issue debt recovery proceedings in the jurisdiction where the
debtor lives.
In some circumstances, limiting a debtor’s ability to contest court
proceedings by starting those proceedings in an inconvenient jurisdiction may
constitute, or be part of a course of conduct constituting unconscionable conduct.

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