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Mortgage Enforcement

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Hicksons is retained by bank and non-bank lenders to act in mortgage recovery matters, including matters involving fraud.

Lenders providing volume instructions to Hicksons benefit from low cost, fixed fees for specific events. To support such cost-effective outcomes, our Mortgage Enforcement team uses alternative dispute resolution options where appropriate. In particular, in defended matters we generally recommend informal settlement conferences early in the matter and mediation once the nature of any asserted defences have been clarified.

We investigate options such as third party recoveries and contribution claims that may improve our clients’ financial outcomes. For example, Hicksons acted for a lender and a mortgage originator in defence of a borrower’s claim for relief from a loan agreement and mortgage. Hicksons joined the mortgage broker in the proceedings and negotiated settlement of the matter on the basis that the borrower refinance the loan for a reduced amount with the mortgage broker paying a substantially component of the difference between the original loan amount and the reduced loan amount.

In appropriate circumstances, we propose innovative solutions to apparently intractable mortgage disputes.  For example, an elderly borrower disputed a mortgage and the costs of running the hearing would have been very large.  Hicksons developed a settlement structure which allowed the borrower a “pseudo life tenancy” but ensured that, with the benefit of a contribution from the mortgage broker, the lender would eventually recover the entirety of the loan.

In acting for lenders, we regularly:

  • issue statutory notices for mortgage default;
  • initiate proceedings for possession;
  • take possession of properties after due process;
  • advise on potential mortgagee sales that are likely to result in a recovery shortfall;
  • act on the sales of security properties;
  • act on the discharge of mortgages;
  • contest defended mortgage recovery actions;
  • respond to claims under the Contracts Review Act, National Consumer Credit Code, Australian Consumer Law, ASIC Act and Farm Debt Mediation Act;
  • respond to allegations of unconscionable conduct; and
  • investigate schemes involving fraudulent borrowing.

We also advise on:

  • mortgage recovery actions involving deceased mortgagors;
  • FOS and CIO complaints and responses to such complaints;
  • sales by mortgagors that are likely to result in a shortfall of monies owed, including whether such sales are in the lender’s interests; and
  • alternative methods of obtaining possession of security properties and recovering loan amounts, such as rent redirection, taking vacant possession and enforcement of guarantees.

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