NON-STATUS LENDING

A summary of the Office of Fair Trading 's guidelines, as revised at November 1997

The full report can be obtained from www.oft.gov.uk/html/rsearch/reports/oft192.htm

Non-status borrowers are those withan impaired credit rating - county court judgements, arrears etc., or a low credit rating - irregular or unverified income, poor employment history, etc. The OFT guidelines are primarily directed at non-regulated lending, ie where the amount of credit exceeds the financial limit - £15,000 up to 30 April 1998, or £25,000 thereafter, but also provide good practice for regulated agreements where not already covered by statutory provisions. The guidelines may be summarised as follows:

Advertising

  • Do not emphasise the quickness of response.

  • Do not suggest that loans are available regardless of the borrower's income or other financial circumstances, but make it clear that all loans are subject to the borrower's ability to pay.

  • Where the advertisement is published by a broker, name any parent company involved.

Canvassing

  • Do not undertake "cold-calling", either by telephone or through home visits.

  • Visits

  • Do not make home visits without making it clear to the borrower the purpose of your visit, nor without the borrower's clear invitation.

  • Visits must only be made at times convenient to the borrower, and you must not overstay your welcome.

  • The borrower must be given time to consider the agreement and to obtain independent advice.

Documentation

  • All documents should be in plain English and legible. Legal and technical language should be avoided as much as possible.

  • Agreements should give a clear statement of the borrower's rights and responsibilities.

  • Name and address of the lender, together with details of any parent company, must be prominently shown on all documents.

  • The contract should indicate clearly the APR and repayment details. It should also make clear the consequence of a failure to pay on time. Lenders should avoid quoting other interest rates, but if these are regarded as essential, they should be given less prominence than the APR. If the APR is variable, it may be helpful to show consumers the effect of a 1% change in interest rates.

  • If payment protection or other insurance is compulsory, this must be made clear to the borrower at the outset. The purpose of the insurance must be made clear, and its terms and cost must be included in the documentation.

  • Insurance must be appropriate to the borrower's needs, and should not give rise to any unnecessary expense to the borrower.

  • Lump sum insurance premiums added to the loan are generally not in the borrower's interest.

  • The borrower should be allowed to obtain insurance from any source, subject to providing the lender with satisfactory evidence of its existence and coverage.

  • All fees and charges payable by the borrower must be clearly laid out in the documentation, and in any booklet.

  • The borrower should be encouraged to read all documents carefully, and advised to seek independent legal or other advice (for example from a CAB, Money Advice Centre or Law Centre).

An advisory booklet

  • Lenders should consider providing customers with a plain English booklet setting out the principal terms, conditions and implications of the loan agreement. It should warn customers that their homes are at risk if they do not keep up repayments.

Brokers, agents and other intermediaries

  • The booklet should make it clear that brokers and other agents (known collectively as "brokers" for the purpose of these notes) may not be able to give unbiased advice if they are tied to the lender, or paid a commission by the lender. The booklet should encourage the borrower to contact the lender direct, if the broker acts in an unacceptable manner.

  • Brokers should give advice which is suitable and appropriate to the borrower's needs and circumstances. If they are unable to offer an appropriate product, this must be made clear to the borrower.

  • If the broker is charging the borrower a brokerage fee, the booklet should make it clear that this is part of the agreement between them, not a condition of the loan. Brokers should disclose the fee at the outset, both orally and in writing. If it is not a cash amount but a percentage, then the method of calculation must be given.

  • Brokers must disclose, at the outset, both orally and in writing, if they are being paid a commission, or are being given any non-monetary benefit, by a lender. The OFT encourages brokers to disclose the amount or its method of calculation, and whether it is intended to reflect the actual costs of brokerage or whether it is linked to the total volume of business introduced by the broker to that lender.

  • Brokers should not claim to be acting on behalf of a local authority when they are advising council tenants on "right to buy" schemes. Brokerage or other fees should not be misrepresented, such as being recorded as "for home improvement purposes", in order to satisfy the requirements of local authorities.

  • Brokers should not use high pressure selling techniques. They should not pressurise a borrower into signing. There should be no financial or other inducements for the borrower to sign in less than 7 days.

  • Copies of booklets and other contract documentation should be provided to the borrower at an early stage. Salespersons should explain to borrowers what the documents are and what they mean.

  • Brokers shall make it clear to borrowers what the consequence will be of failing to comply with the terms of the agreement. They shall encourage the borrower to seek independent legal or other advice before signing. They should not discourage the borrower from seeking impartial advice or from shopping around.

  • Brokers should make all reasonable efforts to satisfy themselves as to the borrower's ability to pay. They should not distort the borrower's income, or conspire with the borrower to falsify details of income, employment or other information. They should not encourage the borrower to take out a loan for * more than the borrower originally requested, * more than the borrower genuinely wants or needs, or* more than the borrower can afford to repay.

  • Brokers should not encourage a borrower to enter into an agreement above the financial limits just to avoid regulation by the Consumer Credit Act 1974.

  • They should not encourage the borrower to replace an unsecured loan with a secured loan, or to consolidate debts in order to allow the lender to obtain a first charge over the property, unless this is in the best interests of the borrower.

  • Brokers should ensure that application forms are completed correctly and, to the best of their knowledge, truthfully. They should not complete documents on behalf of the borrower except where the borrower has expressly given his or her consent. They should not encourage, nor allow, the borrower to sign blank forms or photocopies.

  • Brokers should not encourage borrowers to enter into temporary finance agreements such as a bridging loan where this is unnecessary or inappropriate to the borrower's needs.

  • Brokers should not place a priority search at the Land Registry unless the lender consents and has already received full application details for the loan and intends to lend to the borrower. Such priority should not be used to prevent the borrower from obtaining a loan from another source. It should be removed promptly, and at no charge, on the borrower's request.

Lenders

  • Lenders should take all reasonable steps to verify the accuracy of information provided in, or in support of, a loan application. They should check any discrepancies or omissions, and query any unusual features.

  • Lenders should take all reasonable steps to ensure that brokers who market their products comply with all relevant statutory requirements, comply with these guidelines, and do not engage in deceitful or improper business practices.***

  • They should consider putting in place procedures for auditing brokers, in particular by contacting borrowers direct.

  • Lenders should ensure that their commission arrangements do not favour one particular product over others in their range. If commission rates vary between products, this should be made clear to borrowers. The OFT discourages the use of "volume over-riders" whereby the commission payable will depend on the total volume of business introduced by that broker to that lender. if such a system is in use, it must be disclosed to the borrower.

  • Commission rates should not be such that the broker can influence them, such as by securing a larger loan or higher interest rate.

  • In their decision-making, lenders should concentrate on the borrower's ability to repay, not on the value of equity in the property on which the loan is to be secured.

Contract terms

  • The borrower should be free to withdraw from the agreement, without penalty, at any time prior to completion of the loan. This right should be clearly stated in the documentation and in any booklet. The OFT also encourage lenders to provide a cancellation right for a set period after completion, although it recognises that this may not always be practicable.

  • The agreement should not allow the lender to change unilaterally, at short notice, the date on which payments are due. Such changes should be made only with the consent of the borrower, or with at least 2 months notice.

  • The borrower should have a contractual right to request a change of payment date, and this should not refused unreasonably. Any financial implications for the borrower of a change in payment date should be made clear in advance.

  • Lenders should give prompt written notice of any change in contract terms or conditions. If there are significant changes in any one year, the lender should send a copy of the new terms and conditions on the anniversary of the loan. Increases in interest rates should be notified in writing at least 14 days before they occur.

  • The borrower should be provided promptly with a statement of account, either annually or on request, and this should show all payments made, all amounts unpaid, any interest or other charges, and the current amount of any arrears.

  • The agreement should allow the borrower to make partial repayments of capital at any time. Any charge for allowing this should do no more than cover the costs reasonably incurred by the lender in processing the payment.

  • If a borrower falls into arrears, lenders should deal with this sympathetically and positively. They should monitor default charges carefully, to prevent arrears building up too quickly or too excessively.

  • They should notify the borrower in writing at least once a month of the current position.

  • Lenders should accept any reasonable offer of payment by the borrower.

  • Repossession of property should not be sought except as a last resort.

  • Lenders should not harass the borrower through excessive or intimidatory telephone calls, nor through correspondence; nor should they contact the borrower at unsocial hours. they should not disclose the borrower's circumstances to any third party.

  • Lenders should respond promptly to any telephone call or correspondence from the borrower, or from the borrower's agent or representative.

  • Dual interest rates are unacceptable - if lenders have genuine extra costs through default, they should recover these by direct charges to the borrower.

  • Default charges should be clearly described in the documentation and the booklet. The amounts of charges at the time of the loan should be included in such information. The current scale of such charges should be notified to borrowers who go into default, and at intervals of no more than 3 months while they remain in arrears. Changes in the scale of default charges should be notified to all borrowers.

  • On early settlement, the OFT is of the opinion that use of the "Rule of 78" is unfair and excessive on non-regulated loans. An actuarial calculation should be used to work out interest, and additional administrative charges should do no more than cover the lender's reasonable administration costs.

 


Last updated 12 January 2010