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SA Mortgage Default - Bank Refusing Support for Early Superannuation

Discussion in 'Superannuation Law Forum' started by okanynameyouwishthen, 21 February 2015.

  1. okanynameyouwishthen

    okanynameyouwishthen Well-Known Member

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    Hey all, If a bank are demanding possession on a defaulted mortgage & customer has told bank they can remedy by accessing part of a quite large superannuation account balance under the funds Compassionate Grounds-Mortgage relief clause.

    Customer has told bank the fund need a very specifically worded letter from the bank that satisfies a number of the funds conditions of release.These letters commonly referred to as a 3 + 12 letter.
    Bank refuses to provide letter citing " bank policy " as reasons why.I informed bank due to unforeseen circumstances that is the only ability I have at present to source funds to pay them.
    Court action to continue after negotiations broke down. I intend filing with the judge a sworn affidavit briefly detailing the position I am presently in & the contributing mitigatory factors involved as well as evidence of steps taken & also the funds release conditions together with a verified funds balance.

    In a situation such as I've outlined, is a judge more likely to tell the bank to provide the needed letter for customer to access monies the bank are demanding or make a customer sell?
    Cheers
     
  2. Tracy B

    Tracy B Well-Known Member

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    Hi there,

    Have you asked to see a copy of the policy? Have you asked the bank to explain their policy?

    If you are indeed permitted to withdraw from your superannuation fund after the bank provides the letter, and the bank is refusing to do so without any legal grounds, you can contact the Financial Ombudsman Services. This is a free service and they can have a chat with the bank and find out whether the bank is allowed to refuse the issuance of the letter.

    If you currently in legal proceedings over the matter, you may ask the court to order specific performance, the performance being that the bank issue such a letter. However, the bank may need to be part of proceedings.
     
  3. okanynameyouwishthen

    okanynameyouwishthen Well-Known Member

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    hey, thanks for responding Tracey B. Here's the thing...the FOS were involved & actually chaired a 3 way phone conference whereby the FOS stated they were unable to take action against bank for their decision to not provide letter.The matter was listed in court when I applied for FOS intervention.After first okaying my request for the letter as well as a 6month hold on repayments albeit verbally.The bank rep. returned from his 2 week leave break & completely changed tact( I believe he was pre holiday mood & made 1st offer without looking into the file properly & changed tact after returning & looking more in depth or his boss did ....or something).

    I wasn't happy but what do you do ? So during phone conf. I was given 3 month grace from repayments & a certain date when they had to resume & continue monthly from then on . After 3 consecutive monthly payments the bank were to be provided an Updated Personal Money Plan & capitalize the arrears.The bank were to place a hold on enforcement proceedings.

    The very 1st payment is due to be paid this Friday( which I can do). Once your listed in these things unfortunately you then get near daily letters from all sorts of "non lenders" & " buyers" all trying to "help" you out of your situation. ( Ambulance chasers ). I received one such letter that was slightly different just after new year that said I was listed in court on such & such date.

    I thought it was a typo or an old as yet updated court list since I had signed the agreement with bank.I had other business in town that day & so took my "agreement" with me & attended court.I was held up & arrived 15 minutes after the listed time for my matter & sat at the back of court & watched proceedings.I assumed the lawyer that kept fronting up for other matters involving the same bank as mine would be the person to query about the mix up? so followed her out to foyer when she left.
    I called her out & explained who I was expecting her to say " Oh no that's been halted as per agreement" or similar but to my horror she did not.

    She proceeded to rattle on about she would make note of my attendance & pass on to judge for next time. I said " whoa what are you doing I have an agreement with bank,here it is & I still don't have to make a payment for 6 weeks yet!! why are you still proceeding & why wasn't I informed of the matter being listed by you or the bank?"

    She seemed to get defensive & snarkily said " Well you will be notified of the next date in fact I can tell you now it's March 7th ".

    I said " I don't understand If the agreement says I don't need to make payment until Feb. 27th & being as it's January 21st I haven't broken the agreement so why are we here?"I also said " regardless of today if I pay on the 27th Feb. why will there be an appearance on 7th March? "

    She basically blew me off from there & rambled something that I didn't quite catch as I was certain I was going to pass out to be truthful & was feeling uneasy on feet & needed to sit.

    I just think it's telling that proceedings carried on without informing me . Also from what I witnessed in court when the party isn't present the mouthpieces of the banks just can ride roughshod & tell judge what they like really.

    Which got me back to thinking of the original problem. I satisfy the governments criteria for compassionate grounds release of funds & therefore am able to shore up my arrears mortgage that the bank (quite rightly) are expecting. I just can't accept the bank can override the government legislated rules that cover these events.

    I was planning to make the payment on 27th Feb.( as per agreement) & then front up for court on 7th March & tell the judge all the above & pitch him some relevant extra details as to mitigatory factors & my plan that involves first getting the 3 + 12 letter.

    Sorry about the novel length reply......I'd appreciate feedback on this situation & if any more details are needed or clarification on points I'm keen to provide.

    The mitigatory factors relate to getting in a hole when very messy,nasty split with the mother of our daughter that has turned into alienation issues & hence a nightmare in family court ( 14 months )also the fact I am a first time unemployed at 45 years & need to learn how to interview for a job let alone find one.

    I don't want a free ride & realize I've got commitments still but can't seem to get my head around having a 6 figure Superfund ( 27 years of contributing above that of my employer ) there are strict rules on early release of some funds - which I satisfy & I just need a bit of chill the f*ck out everybody while I find my feet as I know I can't stay unemployed but trying to juggle around other court matters it's daunting.

    I swear if my frame of mind hadn't been where it was the day I spoke to the bank lawyer at court I could've done something permanent to stop the relentless stress & pressure & I think (maybe biased) that their actions are nothing more than bullying & breach of contract.

    If I'm correct I simply want them to provide the letter to alleviate that aspect of my stress hence I don't mind fronting the judge & informing him as to the whole picture that I'm certain he is not privy to at moment.

    Believe me after self repping at family court with the judge I've got there.......I don't feel daunted at all to pitch my story to the supreme court judge . Lol !!

    Cheers
     
  4. Tracy B

    Tracy B Well-Known Member

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    Hi,

    Sounds like quite an ordeal. Have you contacted your superannuation fund provider directly and enquired whether there are other grounds to access your super (e.g. early release for financial hardship)? If so, what alternative supporting documentation must you provide (e.g. letter from centrelink)?

    It's very difficult to say what a judge will more likely order as there are may more factors the judge will consider (e.g. other assets you have, what significance you attach to the property). It also depends on how much discretion the super fund provider has to grant you early release on compassionate grounds. Have you tried the Legal Services Commission about your matter? Alternatively, you could try contacting your local community legal centre.
     
  5. okanynameyouwishthen

    okanynameyouwishthen Well-Known Member

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    Thanks for responding.What's your take on the banks action after we have reached agreement that I have not breached & yet they still carrying on action as if I had? Seems the 3 hour phone conference was a complete stain then if it made no difference.Why say court action halted if I agree to x,y & z & carry on whilst not informing me?
    Cheers
     
  6. Tracy B

    Tracy B Well-Known Member

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    Hi,

    Unfortunately, I cannot advise on the bank's response. I would recommend that whenever you have an oral agreement with a bank representative, you make a written notice of the contents of the conversation and if possible, send a written confirmation by way of email or letter to the representative to confirm what you have discussed and any agreements made in that meeting. This way, if the bank representative agreed to suspend proceedings if you do X, Y and Z, then this needs to be down in writing. You should clarify whether this is an agreement, they are offering and can commit to, or if this is just something said in the moment that the bank is not sure whether to keep to not.

    Given that negotiations are not going well between you and the bank representative, best to speak with a lawyer and have them assist you in coming to a financial arrangement.
     
  7. okanynameyouwishthen

    okanynameyouwishthen Well-Known Member

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    Sorry I've not explained it well then. I have got a signed agreement from the bank that resulted from the phone conference.They have listed proposals expected of me (the payments) & if I accepted them & signed agreement then they would stop court proceedings.I signed & haven't done anything wrong yet they didn't halt court proceedings as per agreement that I signed.
     
  8. Tracy B

    Tracy B Well-Known Member

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    It appears there may be a written agreement between you and the bank. Your payments were your consideration. In them not dropping proceedings, they may have breached the agreement.

    However, you need to determine:
    • Was there an agreement in place? This is done by looking at the wording of the letter you signed. Does it say "may drop proceedings" or "may adjourn/delay/suspend" proceedings? If so, they have not actually agreed to terminate the proceedings. Hence, you need to be clear about exactly what the bank promised.
    • Were the payments actually consideration? At law, if you already owe an obligation to make payment (e.g. to pay $100) under a previous contract or liability, and you then use this same obligation to exchange for more promises by the other party (e.g. to terminate proceedings), then this may not be considered valid consideration. The significance being, no valid consideration, no valid contract, no contractual breach by bank.
    To determine whether you do indeed have a contract with the bank (that the bank subsequently breached) and what you can do about it, it is best to see a lawyer.

    If there was a contract in place:
    • It would not matter that the person who signed the agreement did not have actual authority from the bank to make such an agreement. If that person made out that they had authority to represent the bank and enter into an agreement with you, then their actions could bind the bank, as the law would tend to protect innocent parties from internal irregularities of a corporation (see "apparent authority")
     
  9. okanynameyouwishthen

    okanynameyouwishthen Well-Known Member

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    thanks .I thought I was only one who thought breach !? too suss when wasnt alerted to next hearing date when had been made aware of others.
    thanks again
     

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