Consumer Credit Reviews

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Updating consumer credit - August 2018 Latham & Watkins operate globally as Ltd Partners under the law of the State of Delaware (USA) with associated Ltd Partners operating in France, Italy, Singapore and the United Kingdom and as associated Partners operating in Hong Kong and Japan. In South Korea, Latham & Watkins acts as a Foreign Legal Consultant Office. Summary This Update looks at the DCA Interim Report and its preliminary view on the revision of the Consumer Credit Act 1974 (CCA), which is showing the first indications of a more practical regulatory stance than consumer credit institutions have taken in the past.

Against the background of the CCA, consumer credit in the United Kingdom was governed by a piece-by-piece legal regime. Crowther Report suggested the establishment of a new legal regime (CCA) covering all credit operations (except mortgages) with a focus on consumerism. Since then, EU law (in particular the Consumer Credit Directive (CCD)) has affected changes to the CCA (e.g. the introduction of special obligations to disclose prior to the conclusion of a contract).

After various reviews of the UK regulatory authorities' efficacy, the devolution of consumer credit supervision from the Office of Fair Trade to EZV was finalised in 2014. In the context of this transitional period, Parliament lifted some CCA clauses and substituted others with FCAs. EZV is legally obliged to have the CCA reviewed and to submit a financial statement to HM Treasury by 1 April 2019.

When reviewing, it should be considered whether the abolition of the CCA rules would compromise the adequate level of consumer welfare. "The interim reports present the first opinions of the FCA and invite submission. This interim financial statement shall not be a drafted version of the FCA's concluding financial statement. Rather than making proposals for the Ministry of Finance, it broadly indicates the line of thought of the DCA on the legal issue and related questions.

The FCA does not believe that it will be possible at this stage to make significant changes to the rules transposing the demands of EU legislation, such as the CCCD. UPDATE CONSUMER CREDIT Review of the retention periods of the Consumer Credit Act: The FCA contains some very burdensome rules for consumer creditors which are strongly weighed in favor of consumers.

The EAO regulations do not replace the criminal CCA regulations on automated penalties for consumer credit institutions making errors, which include non-enforceability or cancellation of interest or late payments. EZV regards these legal requirements as a more efficient means of deterrence than its own system of enforcing them. Consumers will continue to be a top concern for the regulatory authority.

However, this seems to be offset by a more equitable system for businesses which can revise the coverage of the automated penalty system (see above) so that it is confined (where appropriate) to shortcomings which cause significant damage to the consumer. The FCA initially believes that the safeguards provided by these terms and conditions should still be applicable and should be maintained in some way, either in legislature or in the FCA regulations (most likely the former may affect the level of consumerism since the repeal of the law).

The FCA initially believes that a setting for the supply of information by companies to clients will continue to be an important consumer protector. Although the FCA believes that the essential information disclosures could be substituted by FCA regulations, the related penalties, such as the following, could not be repeated under the general regulatory powers of the FCA:

Non-enforceability of the Arrangement without judicial order Non-enforceability of the Arrangement in the event of failure to comply with the Arrangement Non-enforceability of the Arrangement in the event of failure to comply with the Arrangement Non-enforceability of interest and penalties (Disentitlement) 8 7 Offences Violation of the legal obligation 8 8 The FCA initially considers that the "self-control character" of these automated penalties is essential to ensure adequate business behaviour in the consumer credit industry and to protect the consumer.

Moreover, the sanctioning of waivers of interest and late payments provides an extra disincentive to non-compliance in cases where the danger of damage to endangered customers is particularly high. The non-enforceability under the FSMA regulatory authority of the FCA cannot be repeated. Nor would it be possible to reproduce the crimes under the FSMA regulatory authority of the FCA.

EZV does not consider that a violation of the legal obligation as a replacement for non-enforceability would result in a similar level of consumer protections in the consumer credit area. Nevertheless, the FCA initially considers that the field of action of the penalties should be restricted so that they focus on infringements that can cause significant damage to the consumer.

Thus, for example, the penalty of non-enforceability could only be applied if certain mandatory concepts are absent or incorrect in content, or only if the mandatory declaration or publication is not made at all or is not corrected within a certain time limit. UPDATE CONSUMER CREDIT Review of the retention periods of the Consumer Credit Act:

Intermediate Report on Consumer Crime Updated Continued verification of retained consumer credit provisions: There are a number of possible benefits to transferring the CCA information requirement into the FCA manual, including: Possibility of reviewing information requirements: It would allow the FCA to carry out a detailed examination of the content of information obligations in order to ensure an adequate consumer safety standard without placing a undue burdens on businesses.

The FCA therefore believes that it would be preferable to substitute FCA clauses for information duties in these CCAs. Replacing the information requests in the CCA clauses and schemes with EAO clauses would be one way of maintaining the relevant CCA clauses on the impact of non-compliance.

This should result in changes to the CCA clauses containing penalties for non-compliance with the FCA clauses in order to make them applicable to non-compliance with the clauses. The interim report takes into account stakeholders' concern that the detail of information requests is rigid (too strict in terms of substance and form), imposing undue restrictions on business and producing bad results for the consumer.

Associated Liabilities of the Mortgagor Pursuant to CCA Art. 75 (and 75A), a vendor is under certain conditions held joint and several responsible for a supplier's failure to comply with a contractual obligation or misrepresentation of goods orervices. It is most often seen as the kind of security you get with credit cards.

EZV observes that there is broad consensus that Section 75 is a strict consumer policy with which the consumer is relatively acquainted and which he often uses. This can give the consumer the trust to buy only on-line or abroad from unfamiliar sellers. EZV also states that this protections promote the activities of creditors by encouraging them to use credit card payments through other means of payments.

FCA initially considers that paragraphs 75 and 75A should be maintained in the law. The FCA considers, however, that it is justified to examine the questions mentioned in paragraphs 75 and 75A in order to make sure that they offer an adequate degree of consumer protection without placing excessive or unreasonable burden on businesses and to resolve or bring up to date matters.

Changes in contract arise when the lender or proprietor changes a contract within the scope of a regulatory authority in the contract. If this is the case, the lender or proprietor must notify the client of the change in the required way before the change can take effect. Consumers' Debt Update Continue the review of the retained provisions of the Consumer Credit Act:

5 The FCA initially considered that Section 82(2) should be retained in the CCA, but that the related information requirement should be removed and superseded by FCA-rule. The CCA provides that a believer or proprietor is not authorised to take certain execution measures in connection with a settled arrangement unless the client is informed in the required way.

Initially, the FCA is of the opinion that this should be retained in the CCA. Unauthorized and credited transfers The new Payment Services Regulations 2017 (PSRs) contain rules on responsibility for unauthorized transfers within their area of application. In some cases, these rules are currently not applicable to CCA-regulated arrangements. First, the FCA considers that it may be beneficial to seek a single, coherent system of regulation for non-authorised cross-border transfers, whether or not they are within a credit line provided under a CCA-regulated covenant.

FCA is of the opinion that the general degree of security is largely similar and the benefits of establishing a more uniform system suggest that it would be appropriate to substitute paragraphs 83 and 84 of the FCA by paragraphs 75 and 76 of the FCA if a FCA-regulated arrangement is also a settlement for paymentservices.

Section 83 should, however, be maintained in relation to CCA-regulated credit arrangements which do not include the supply of paymentservices under Part 7 of the PPRs. Revocation and annulment The FCA first considers that the revocation and annulment clauses in Section 66A and Section 67 to 73 should stay in the CCA as their revocation would undermine the adequate level of consumer protection. However, it is also considered that the CCA should not include the revocation and annulment clauses in Section 66A and Section 67 to 73.

The early redemption pursuant to Section 94 of the CCA shall entitle the obligor to prepay, in whole or in part, a settled credit arrangement by notifying the lender and making such payments as are necessary to satisfy his debts, less any reimbursement of fees. In certain restricted cases, the obligor may also be obliged to compensate the lender for damages.

Initially, the FCA considers that in order to maintain the consistency of the regulation system, parts of the early liquidation provision should be retained in the CCA. Under the CCA, the tribunal has wide-ranging jurisdiction to re-open credit contracts if it finds that there is an improper relation between the lender and the borrower resulting from the arrangement or from the arrangement together with a corresponding one.

CCA Section 140A has some resemblance both to Principle 6 of the FCA Business Principles (which demands that a company take due account of the interests of its clients and deal with them fairly) and to some of the Code of Business Ethics in CONC. Infringement of Principle 6 may also provide the foundation for the exercising of the DCA's authority to seek remedies from an undertaking, in particular the provision of legal remedies, or reimbursement claims (although a procedural system of consumer protection under Article 404 FMA cannot be used for infringements of the Principles, unless the PRIN is modified to make the Principles enforceable in court).

By way of contrast, the CCA gives the tribunal a very wide discretion to direct a believer (or a partner or former partner who does not necessarily have to be an authorized person) to take the action described in Section 140B at the request of a borrower or a guarantor. That is the case where the courts consider that the special relation between the defendant and the believer is unjust according to the particular case.

For some years now, the comprehensive authority to re-establish and reconstruct an arbitrary contract between a borrower and a lender when the restoration of a equitable equilibrium between the contracting partners is appropriate has been an important safeguard of consumer credit regulations. First of all, the FCA considers that, from the point of view of consumer policy, it does not consider it appropriate to eliminate the capacity of a borrower or guarantor to ask the courts to relieve him of the effects of an improper deal.

n/a 55C Copy of the credit contract 77B Statement of accounts on demand (fixed credit) 176 Delivery of 176A Documentation 176A Rules of partial substitution by e-mail: Information requirement could be superseded, but not related penalties Non-enforceability without judicial order 55 Legal basis and contents of pre-contractual information 60 Legal basis and contents of contract information 60 Legal basis and contents of contract information

77 Bank statement and copy contract on demand (fixed amount credit) 78 Periodical bank statement and copy contract on demand / Periodical bank statement (current account credit) 79 Bank statement and copy contract on demand (rent) 85 Copy contract for issuing new loans

86C Notification of overdue amounts (current accounts credit) 86E Notification of overdue amounts 97 Billing slip Cancellation of interest and overdue amounts 76A Regular bank reports (fixed amounts) 86B Notification of overdue amounts (fixed credit) 86C Notification of overdue amounts (current credit ) 86E Notification of defaulted amounts Consumer CREDIT UPDATEcontinued Timeline - anticipated consumer credit trends 7 Nicola Higgs Partner, Consumer Credit Update is released by Latham & Watkins as a messaging tool for customers and other people. If further analyses or explanations on the topic are needed, please refer to the attorney you normally work with.

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