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How do I apply to the court to change my loan contract?

If you want to apply to the court to change your loan contract, you need to follow these steps:

Step 1 — Prepare your application to change your loan contract

What forms do I need to prepare my application?

You will need the following forms:

  1. Form 5 — Originating application
  2. Form 46 — Affidavit
  3. Form 47 — Certificate of exhibit
  4. Form 46 — Affidavit of service
  5. Form 59 — Order.

Where do I get the forms?

You can get copies of the forms from the Magistrates Court registry or from the Queensland Courts website www.courts.qld.gov.au (go to the Forms section and look in the Uniform Civil Procedure Rules 1999 category).

Note: All the forms you complete must be typed or neatly written in blue or black ink.

Complete the application form

There is a sample Form 5 — Originating application in Sample documents and forms you can use as a guide to help you complete the form. In the form you are the applicant and the lender is called the respondent. You will see the form asks the court to make orders about what you want to happen. If you are having trouble with the wording, ask a lawyer to help you.

Complete the affidavit

There is a sample Form 46 — Affidavit in Sample documents and forms you can use as a guide.

An affidavit is a signed, written statement that supports your application. It tells your story to back up your request for the orders in the application.

The affidavit should:

  • identify the loan and attach the contract—attachments are called exhibits or annexures and should have a cover sheet called a Form 47 — Certificate of exhibit like the sample in Sample documents and forms
  • explain your dealings with the lender and attach copies of relevant documents, like default notices and any letters you wrote to the lender
  • explain when and why the defaults happened, why you are having financial problems, and when and how you expect to get back on track.

Prepare an Affidavit of service

Use the Form 46 — Affidavit template to prepare your Affidavit of service. There is a sample Form 46 — Affidavit of service in Sample documents and forms you can use as a guide. An Affidavit of service is the document you will present to the court to show you served your completed forms and documents on the lender. Your affidavit must be witnessed by a commissioner of declarations, justice of the peace or a lawyer.

Prepare an Order

Use the Form 59 — Order to prepare your Order. There is a sample Order in Sample documents and forms you can use as a guide. In your Order you can tell the court what decisions you want it to make about your matter.

Step 2— Sign all your forms in the presence of a commissioner of declarations, justice of the peace or a lawyer

Take your forms and documents to a commissioner of declarations, justice of the peace or a lawyer, and sign each page in their presence. They will also sign and mark the date and place where they witnessed your affidavit.

To find a justice of the peace near you, visit www.qld.gov.au and type ‘find your nearest justice of the peace’ in the search box.

Step 3 — Make three copies of your forms and documents

You need to make three copies of all your forms and documents as you will file three copies with the court, and serve one copy on the lender.

Step 4 — File your forms and documents with the court and pay a filing fee

File three copies of your forms and documents at the Magistrates Court registry and pay a filing fee. You can ask the court to refund the filing fee on the basis of hardship when you appear in court. The clerk at the court will arrange a hearing date and write it on your application.

Step 5 — Serve one complete copy of the forms and documents on the respondent

You must serve (deliver) one complete copy of your forms and documents on the respondent (the lender). Do this as soon as you can as you must give the lender enough time to prepare for court. Get legal advice about this.

You can either deliver the documents in person to their head office or send them by registered post, which means the person receiving them must sign for them when they are delivered. You should get evidence to show the documents have been received. If you deliver them in person, ask the receptionist to sign an acknowledging receipt. If you send them by registered post, keep your Australia Post receipt.

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