Australian Broker magazine Issue 8.11

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ISSUE 8.11 June 2011

FBC clawback clause up to the test

Leanne Scott

 Success in first

legal clawback claims to spur wider trend A clawback-related ‘fee-for-service’ may be the first fee structure to ‘hit the deck’ across the mainstream mortgage broking industry, as increasing numbers of businesses successfully recoup fees from clients by enforcing clawback clauses inserted into their Finance Broking Contracts (FBC). As lender clawbacks become more widespread ahead of a 1 July government ban on exit fees, Australian Broker can detail the circumstances of two cases in which brokers have been successful in enforcing clawback clauses. In the first, former director of the Australian Institute of

Professional Brokers, Maria Rigoni, received a ruling in her favour in the Victorian Civil and Administrative Tribunal (VCAT), resulting in her successfully recouping $5,000 from a client following a lender clawback. Likewise, Queensland-based Richard Luke of Oshawa Financial was able to win back almost $9,000 in lost fees, when his strong legal case – based on three separate legal opinions – forced a client to eventually settle the dispute, following his decision to test it before a court. At a panel of leading mortgage brokers held by Australian BrokerNewsTV, Mortgage Choice broker Leanne Scott argued that of the different fee structures – including pure fee-for-service and a ‘no-go’ fee – a clawback fee is the

Fee model slammed

most likely to become widely utilised. “For instance, you talk about the million-dollar loan being clawed back within 18 months to two years, well that could be a $4,000 turnaround on your bottom line – or more,” Scott said. “We may be forced to put a clause into our own finance contracts, which says, if a client does this in this period of time, please be advised we are going to bill you for the clawback.” Rigoni said that her successful VCAT decision proves that these FBC clawback provisions are valid and enforceable, despite doubts over their legal strength in the wider market. “If a broker has a contract with a borrower with a clawback provision, and the borrower has agreed to repay that amount when and if charged by the lender and signed the agreement – and has been given a copy – the legal system will enforce the payment,” Rigoni said. Success with FBC clawback clauses is also wider than these cases. In a reader response to the expansion of lender clawbacks on the Australian BrokerNews website, a regular reader noted that he had a clause in his FBC for over three years, and had enforced it three times. He said that each time, the client paid within 10 days of being notified by the business. “We spend a lot of time explaining why it is charged and when, and putting it in writing,” the reader said. Page 18 cont.

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Top brokers weigh in on fee-for-service future Page 2

Non-bank decline Brokers blamed for non-bank fortune failure Page 11

Banks conflicted Channel conflict emerges from face-to-face policies Page 14

Inside this issue Viewpoint 20 Top brokers on fee-for-service Analysis 22 Getting behind the white labels Insight 24 The ultimate success secrets Market talk 26 Price declines bring opportunity The Futurosophist 28 When houses go to the dogs Caught on Camera St.George gathers aggregators

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Insider 2015: A Loan Odyssey

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