reversemortgagelenders.com.auAct Part 3-2D · Code section 18C

Act Part 3-2D
Code section 18C

The reverse mortgage information statement, the name, and legal advice

Before it assesses a reverse mortgage, a licensee must give the borrower a reverse mortgage information statement, and it must also make the statement available on its website and on request. It must not use terms like “reverse mortgage” inaccurately, and the National Credit Code lets the regulations govern a reverse mortgage made without legal advice.

General information, not financial or legal advice. The official place to check is Moneysmart’s page on reverse mortgages; the law itself is on the Federal Register of Legislation.

s 133DA the guide

The Act’s own summary

Part 3-2D of the National Consumer Credit Protection Act opens with a short guide to itself. It is the plainest statement of what a reverse mortgage lender owes before any contract exists:

“This Part has rules that apply to licensees that provide credit services or are credit providers.”

“Before providing credit assistance, or entering into a credit contract, for a reverse mortgage, licensees must provide projections of the debtor’s equity in the property that may be covered by the reverse mortgage.”

“Licensees must also make reverse mortgage information statements available on their websites and on request.”

“Licensees must not inaccurately use terms like ‘reverse mortgage’ in making representations about credit contracts and mortgages.”

National Consumer Credit Protection Act 2009, section 133DA

So the duties below reach a licensee that provides credit assistance on a reverse mortgage, as well as the credit provider that enters into the contract.

s 133DB before assessing

Before the assessment

Section 133DB sets out what a licensee must do before it makes the assessment the Act requires of it, “in connection with a credit contract with a consumer for a reverse mortgage”. In the order the section gives them, the licensee must:

  1. Show or give the projections

    Show the consumer in person, or give them in a way the regulations prescribe, projections of the home’s value and the consumer’s debt over time, made by using a website approved by ASIC.

  2. Give a printed copy

    “give the consumer a printed copy of the projections”.

  3. Tell the consumer in person

    “tell the consumer in person the things (if any) that relate to reverse mortgages and are prescribed by the regulations”. The projections may be shown or given; this step is to be done in person.

  4. Give the information statement

    “give the consumer a reverse mortgage information statement.”

One defence goes with the last step. For the information statement, “it is a defence if the licensee reasonably believes that another person has given the consumer a reverse mortgage information statement in the last 90 days.”

ss 133DC, 133DD

Three places the statement must be found

  • Before the assessment

    Given to the consumer as one of the four steps in section 133DB.

  • On the website

    Section 133DC applies to a licensee that provides, or holds itself out as able to provide, credit assistance on reverse mortgage contracts, or is a credit provider under one or more of them, and has a website that gives information about such contracts. That licensee “must make available through the website a reverse mortgage information statement.”

  • On request

    Section 133DD applies to a licensee who provides, or holds itself out as able to provide, credit assistance for reverse mortgages, or who is a credit provider under them, when a consumer either asks it for a statement other than through its website or is one the regulations require to be given a statement, and the consumer gives it their name and the contact details the regulations require. Where the section applies, the licensee must give them one, in line with any requirements the regulations prescribe. The section also sets out defences: among them, that the licensee has already given the consumer a statement or reasonably believes someone else has, or that a credit provider reasonably believes the consumer would not be eligible for one of its reverse mortgages.

Between them, the three sections put the statement on the website of a licensee that has one about these contracts, within reach on request, and in the consumer’s hands before the assessment.

s 133DE the name

The name itself

Section 133DE covers representations a licensee makes about an actual or proposed credit contract or mortgage, and names the terms it governs: the phrase “reverse mortgage”, and “another term (whether or not in English) of similar import”. The Act’s guide to the Part sums the rule up: licensees must not use terms like these inaccurately.

The National Credit Code gives “reverse mortgage” its own legal meaning in section 13A, and ASIC may by legislative instrument declare other kinds of arrangement, involving a credit contract and a mortgage over a dwelling or land, to be reverse mortgages.