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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
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Do not emphasise the
quickness of response.
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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.
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Where the advertisement is
published by a broker, name any parent company involved.
Canvassing
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Do not undertake
"cold-calling", either by telephone or through home visits.
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Visits
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Do not make home visits
without making it clear to the borrower the purpose of your visit, nor
without the borrower's clear invitation.
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Visits must only be made at
times convenient to the borrower, and you must not overstay your welcome.
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The borrower must be given
time to consider the agreement and to obtain independent advice.
Documentation
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All documents should be in
plain English and legible. Legal and technical language should be avoided as
much as possible.
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Agreements should give a
clear statement of the borrower's rights and responsibilities.
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Name and address of the
lender, together with details of any parent company, must be prominently
shown on all documents.
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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.
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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.
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Insurance must be appropriate
to the borrower's needs, and should not give rise to any unnecessary expense
to the borrower.
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Lump sum insurance premiums
added to the loan are generally not in the borrower's interest.
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The borrower should be
allowed to obtain insurance from any source, subject to providing the lender
with satisfactory evidence of its existence and coverage.
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All fees and charges payable
by the borrower must be clearly laid out in the documentation, and in any
booklet.
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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
Brokers, agents and other intermediaries
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.***
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They should consider putting
in place procedures for auditing brokers, in particular by contacting
borrowers direct.
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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.
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Commission rates should not
be such that the broker can influence them, such as by securing a larger
loan or higher interest rate.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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They should notify the
borrower in writing at least once a month of the current position.
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Lenders should accept any
reasonable offer of payment by the borrower.
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Repossession of property
should not be sought except as a last resort.
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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.
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Lenders should respond
promptly to any telephone call or correspondence from the borrower, or from
the borrower's agent or representative.
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Dual interest rates are
unacceptable - if lenders have genuine extra costs through default, they
should recover these by direct charges to the borrower.
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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.
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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
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