Related provisions for MCOB 9.8.6

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MCOB 4.10.4GRP
1The guidance on initial disclosure requirements at MCOB 4.4.2 G to MCOB 4.4.4 G may be relevant.Additional requirements for distance home purchase mediation contracts with retail customersNote: The rules regarding additional disclosure requirements for, and cancellation of, distance home purchase mediation contracts are set out in MCOB 4.5 and MCOB 4.6 respectively.
MCOB 4.10.7GRP
The guidance on suitability at MCOB 4.7.8 G to MCOB 4.7.10 G and MCOB 4.7.16 G may be relevant.
MCOB 1.6.1GRP
MCOB applies to regulated mortgage contracts entered into on or after 31 October 2004. Variations made on or after that date to contracts entered into before that date are not subject to FCA regulation but may be subject to the Consumer Credit Act 1974. PERG 4.4.13G2 contains guidance on the variation of contracts entered into before 31 October 2004.12
MCOB 1.6.2GRP
Principle 2 requires a firm to conduct its business with due skill, care and diligence. The purpose of MCOB 1.6.3 R is to reinforce this. The FCA would expect firms to take appropriate steps to determine whether any mortgage it proposes to enter into is subject to FCA regulation.
MCOB 1.6.3RRP
Before a firm enters into a mortgage, it must take all reasonable steps to establish whether that mortgage will be a regulated mortgage contract and therefore subject to MCOB.
MCOB 1.6.4RRP
If, notwithstanding the steps taken by a firm to comply with MCOB 1.6.3 R, it transpires that a mortgage which the firm has treated as unregulated is in fact a regulated mortgage contract, the firm must as soon as practicable after the correct status of the mortgage has been established:(1) contact the customer and provide him with the following information in a durable medium:(a) a statement that the mortgage contract is a regulated mortgage contract subject to FCA regulation,
MCOB 1.6.5GRP
(1) MCOB 1.6.4 R(2) means, for example, that if a firm discovered immediately after completion that a loan was a regulated mortgage contract, the firm would be required to comply with MCOB 7.4 (Disclosure at the start of the contract).(2) Although MCOB 1.6.4 R recognises that firms may become aware that a mortgage is a regulated mortgage contract at a late stage, the FCA expects this to be an extremely rare occurrence. It could arise, for example, if a firm has acted on the understanding,
PERG 4.8.1GRP
Article 61(2) of the Regulated Activities Order makes administering a regulated mortgage contract a regulated activity 'where the contract was entered into by way of business' on or after 31 October 2004.
PERG 4.8.2GRP
The definition does not include administration of a regulated mortgage contract which was not entered into by way of business. See PERG 4.3.3 G for a discussion of the 'by way of business' test. The definition also does not include administration of a mortgage which was entered into before 31 October 2004. See, however, PERG 4.4.4 G and PERG 4.4.13 G for a discussion of how a variation of a mortgage contract entered into before 31 October 2004 could amount to the entry into a
PERG 4.8.3GRP
Under article 61(3)(b) of the Regulated Activities Order, administering a regulated mortgage contract is defined as either or both of:(1) notifying the borrower of changes in interest rates or payments due under the contract, or of other matters of which the contract requires him to be notified; and(2) taking any necessary steps for the purposes of collecting or recovering payments due under the contract from the borrower;but does not include merely having or exercising a right
PERG 4.8.4GRP
Article 62 of the Regulated Activities Order provides that a person who is not an authorised person does not administer a regulated mortgage contract if he:(1) arranges for a firm with permission to administer a regulated mortgage contract (a 'mortgage administrator') to administer the contract; or(2) administers the regulated mortgage contract itself, provided that the period of administration is no more than one month after the arrangement in (1) has come to an end.
PERG 4.8.5GRP
This exclusion may be of a particular interest to a special purpose vehicle which administers regulated mortgage contracts transferred to it as part of a securitisation transaction.
MCOB 9.1.1RRP
This chapter applies to a firm in a category listed in column (1) of the table in MCOB 9.1.2 R in accordance with column (2) of that table, except that those provisions that by their nature are only relevant to regulated mortgage contracts do not apply to home reversion plans2.
MCOB 9.1.3RRP
This chapter applies in the circumstances set out in other rules in this sourcebook, but in relation to an equity release transaction2, in accordance with the table in MCOB 9.1.4 R.2
MCOB 9.1.5RRP
In this chapter, references to an equity release transaction2 include, where the context requires, references to arrangements which are capable of becoming an equity release transaction2. 22
SUP 16.11.1RRP
This section2 applies to a firm which is a home finance provider3 or in respect of sales to a retail client5 or a consumer5:355(1) an insurer; or(2) the operator ofa regulated collective investment scheme, an investment trust savings scheme , or a personal pension scheme4; or 4(3) a person who issues or manages the relevant assets of the issuer of a structured capital-at-risk product,unless the firm is a managing agent.
SUP 16.11.2GRP
(1) The purpose of this section2 is to set out the requirements for firms in the retail mortgage, investment, and pure protection contract markets specified in SUP 16.11.1 R to report individual product sales data to the FCA17. In the case of firms in the sale and rent back market, there is a requirement to record, but not to submit, thedata.6 These requirements apply6 whether the regulated activity has been carried out by the firm, or through an intermediary which has dealt directly
SUP 16.11.3RRP
(1) A firm must submit a report (the 'data report') containing the information required by SUP 16.11.5 R quarterly, within 20 business days of the end of the quarter, unless (3) or (4)6 applies.(2) The reporting periods are the four calendar quarters of each year beginning on 1 January.(3) A firm need not submit a data report if no relevant sales have occurred in the quarter.(4) 6A SRB agreement provider must compile, and keep for at least five years from the end of the relevant
SUP 16.11.5RRP
The data report must contain sales data in respect of the following products:(1) retail investments;(2) pure protection contracts; 3(3) regulated mortgage contracts (but not further advances);3(4) home purchase plans;36(5) home reversion plans; and63(6) 6regulated sale and rent back agreements.
MCOB 13.3.1RRP
(1) A firm must deal fairly with any customer who:(a) is in arrears on a regulated mortgage contract or home purchase plan;11(b) has a sale shortfall; or11(c) is otherwise in breach of a home purchase plan.(2) A firm must put in place, and operate in accordance with, a written policy (agreed by its respective governing body) and procedures for complying with (1). Such policy and procedures must reflect the requirements of MCOB 13.3.2A R and MCOB 13.3.4A R.3
MCOB 13.3.4ARRP
3In complying with MCOB 13.3.2AR(6):(1) a firm must consider whether, given the individual circumstances of the customer, it is appropriate to do one or more of the following in relation to the regulated mortgage contract or home purchase plan with the agreement of the customer:(a) extend its term; or(b) change its type; or(c) defer payment of interest due on the regulated mortgage contract or of sums due under the home purchase plan (including, in either case, on any sale shortfall);
MCOB 13.3.4BRRP
3A firm must make customers aware of the existence of any applicable Government schemes to assist borrowers in payment difficulties in relation to regulated mortgage contracts.
MCOB 2.4.1GRP
The purpose of this section1 is to remind firms of the relevance of the high level standards in PRIN, especially with regard to the use of sales methods that may lead a customer to feel pressurised to enter into, or vary, a regulated mortgage contract, home reversion plan or regulated sale and rent back agreement.11
MCOB 2.4.2GRP
12(1) Principle 6 (Customers' interests) requires that a firm must pay due regard to the interests of its customers and treat them fairly. This means, for example, that a firm should avoid selling practices that commit customers (or lead customers to believe that they are committed) to any regulated mortgage contract or home reversion plan before they have been able to consider the illustration and offer document. One such practice might be to present a new customer with an illustration,
MCOB 2.4.3GRP
Principle 7 (Communications with clients) requires that a firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading. This means, for example, that a firm should avoid giving any customer a false impression about the availability of a regulated mortgage contract, home reversion plan1 or regulated sale and rent back agreement2, such as describing it as a 'special offer' not available after
MCOB 8.1.4RRP
(1) Initial disclosure requirements apply4 only in relation to varying the terms of an equity release transaction4 entered into by the customer in any of the following ways:44(a) adding or removing a party;(b) taking out a further advance; or(c) switching all or part of the lifetime mortgage3 from one interest rate to another.13(2) Otherwise, this chapter applies in relation to any form of variation of an equity release transaction.444
MCOB 6.5.1RRP
If a firm makes an offer to a customer with a view to entering into a regulated mortgage contract, it must provide the customer, along with the offer document, with a tariff of charges that could be incurred on the regulated mortgage contract.
MCOB 6.5.2RRP
If the regulated mortgage contract has any linked borrowing or linked deposits, details of the charges on these linked facilities, for example charges payable on a linked current account, must be included in the firm'stariff of charges.
MCOB 6.5.6RRP
If a firm makes an offer to a consumer2 with a view to entering into a regulated mortgage contract a which is a distance contract, it must provide the consumer2 with the following information with the offer document:22(1) the EEA State or States whose laws are taken by the firm as a basis for the establishment of relations with the customer prior to the conclusion of the regulated mortgage contract;(2) any contractual clause on law applicable to the regulated mortgage contract
MCOB 7.4.1RRP
(Subject to MCOB 7.7.5 R) a firm that enters into a regulated mortgage contract with a customer must provide the customer with the following information before the customer makes the first payment under that regulated mortgage contract:1(1) the amount of the first payment required;(2) the amount of the subsequent payment(s) if different from the first payment;(3) the method by which the payment will be collected (for example, by direct debit) and the date of collection of the
MCOB 7.4.3GRP
In the case of a regulated mortgage contract under which the loan is advanced to the customer in separate tranches, the amount required under MCOB 7.4.1 R(1) will be the repayment relating to the first tranche. The amount(s) required under MCOB 7.4.1 R(2) will need to reflect the fact that when each subsequent tranche is advanced, the payment that the customer will need to make will change.
MCOB 7.4.4RRP
(1) A firm must make and retain an adequate record of the information that it provides to each customer at the start of the regulated mortgage contract in accordance with this section.(2) The record required by (1) must be maintained for a year from the date that the information is provided to the customer.
MCOB 12.4.1BRRP
When a customer has a payment shortfall in respect of a regulated mortgage contract, a firm must ensure that any payments received from the customer are allocated first towards paying off the balance of the shortfall (excluding any interest or charges on that balance).3
MCOB 12.4.2GRP
A firm may calculate the same level of arrears charges for all regulated mortgage contracts where the customer is in arrears, rather than on the basis of the individual regulated mortgage contract with the particular customer.
PERG 4.17.1GRP
Article 90 of the Regulated Activities Order essentially carves out regulated mortgage contracts from regulation under the Consumer Credit Act 1974 (CCA). Many loans that fall within the regulated mortgage contract definition are already exempt from much of the detail required under the CCA.
PERG 4.17.2GRP
Some loans that will fall within the regulated mortgage contract definition are also currently classified as regulated agreements under the CCA. In these cases, the impact of the carve-out in article 90 of the Regulated Activities Order is likely to be more significant. In particular, most of the CCA controls in respect of entering into, operation and termination of agreements will not apply. Article 90 also, however, provides that section 126 of the CCA (Enforcement of land mortgages)
PERG 4.17.15GRP
Articles 90 and 91 of the Regulated Activities Order include provisions that have the effect of removing from CCA regulation financial promotions about qualifying credit. Such promotions will not therefore be subject to Part IV of the CCA or regulations made under that Part.
MCOB 8.3.1RRP
(1) 3(a) 3Subject to (c),MCOB 4.1 to MCOB 4.6 and MCOB 4.8 (with the modifications stated in MCOB 8.3.3 R and MCOB 8.3.4 R) apply to a firm where the home finance transaction is a lifetime mortgage.33(b) MCOB 4.1 to MCOB 4.4 and MCOB 4.8 (with the modifications stated in MCOB 8.3.3 R and MCOB 8.3.4 R) apply to a firm where the home finance transaction is a home reversion plan, except for those provisions that by their nature are only relevant to regulated mortgage contracts.3(2)
MCOB 8.3.1BGRP
3Firms should substitute equivalent home reversion terminology for lifetime mortgage terminology, where appropriate. Examples of terms and expressions that should be replaced in relation to home reversion plans are 'loan' or 'amount borrowed', which should be replaced with 'amount released' or 'amount to be released', as appropriate, and 'mortgage lender' and 'mortgage intermediary' which should be replaced with 'reversion provider' and 'reversion intermediary'.
MCOB 8.3.3RRP

Table of modified cross-references to other rules: This table belongs to MCOB 8.3.1 R.

Subject

Rule or guidance

Reference in rule or guidance

To be read as a reference to:

Advice or information from the whole market

MCOB 4.3.4R(2)

MCOB 4.7.2R

MCOB 8.5.2R

Initial disclosure requirement (for equity release transactions only)3

3

MCOB 4.4.1R(1)(c) and (3)

MCOB 4 Ann 1R

MCOB 8 Ann 1R

Initial disclosure requirements

MCOB 4.4.3G

MCOB 4

MCOB 4 as modified by MCOB 8

Initial disclosure requirements where initial contact is by telephone (for equity release transactions only)3

3

MCOB 4.4.7R(2)1

MCOB 4 Ann 1R1

MCOB 8 Ann 1R1

Additional disclosure for distance mortgage mediation contracts

MCOB 4.5

MCOB 41

MCOB 4 as modified by MCOB 81

Non-advised sales

MCOB 4.8.6G

MCOB 4.7

MCOB 8.5

MCOB 13.1.4RRP
The requirements in this chapter1will continue to apply to a firm after a regulated mortgage contract or home purchase plan1has come to an end following the sale of a repossessed property. References in this chapter to "customer" will include references to a former customer as appropriate.1
MCOB 13.1.6GRP
A firm may have entered into a mix of regulated mortgage contracts and non-regulated mortgage contracts with a customer secured on the same property. In such circumstances, if the regulated mortgage contract is in arrears, notwithstanding that the overall position in respect of the mortgages generally is not in arrears, the firm will need to comply with all the requirements of MCOB 13 in respect to the regulated mortgage contract. Where this involves providing the customer with
MCOB 13.1.7GRP
If a firm has entered into more than one regulated mortgage contract or home purchase plan1with the same customer relating to1the same property, the firm may treat them1 all as one for the purposes of this chapter1.111
MCOB 13.6.3RRP
A firm must ensure that, as soon as possible after the sale of a repossessed property, if the proceeds of sale are less than the amount due under the regulated mortgage contract or home purchase plan1, the customer is informed in a durable medium of:1(1) the sale shortfall; and(2) where relevant, the fact that the sale shortfall1may be pursued by another company (for example, a mortgage indemnity insurer).1
MCOB 13.6.4RRP
(1) If the decision is made to recover the sale shortfall,1 the firm must ensure that the customer is notified of this intention.1(2) The notification referred to in (1) must take place within five years of the date of the sale (if the regulated mortgage contract or home purchase plan1is subject to Scottish law) or within six years (in all other cases).
MCOB 13.6.6RRP
A firm must ensure that, on the sale of a repossessed property, if the proceeds of sale are more than the amount due under the regulated mortgage contract or home purchase plan1, reasonable steps are taken, as soon as possible after the sale, to inform the customer in a durable medium of the surplus and, subject to the rights of any subsequent mortgage or charge holders, to pay it to him.1
MCOB 7.1.4RRP
This chapter applies in relation to further advances and other variations (as specified in MCOB 7.6.7 R - MCOB 7.7.4 R in relation to a regulated mortgage contract2) regardless of whether they are variations to an existing home finance transaction2or are such that they involve the customer entering into a new home finance transaction2.22
MCOB 7.1.5RRP
This chapter also applies in relation to regulated mortgage contracts in circumstances where the original mortgage lender has passed on ownership of the loan to a third party through securitisation. In such a case, the rules in MCOB 7.5 - MCOB 7.7.4 R will apply to the firm which administers the regulated mortgage contract.
MCOB 7.1.8RRP
In relation to a lifetime mortgage2, this chapter is modified by MCOB 9 (Equity release2: product disclosure).1222
MCOB 2.3.2RRP
A firm must take reasonable steps to ensure that it, and any person acting on its behalf, does not: (1) offer, give, solicit or accept an inducement; or (2) direct or refer any actual or potential business in relation to a regulated mortgage contract,3home reversion plan2 or regulated sale and rent back agreement3 to another person on its own initiative or on the instructions of an associate; 3if it is likely to conflict to a material extent with any duty that the firm owes to
MCOB 2.3.6RRP
(1) A firm must not operate a system of giving or offering inducements to a mortgage intermediary, reversion intermediary,2SRB intermediary3 or any other third party whereby the value of the inducement increases if the intermediary2 or third party, such as a packager, exceeds a target set for the amount of business referred (for example, a volume override). 2(2) A firm must not solicit or accept an inducement whereby the value of the inducement increases if the firm exceeds a
MCOB 2.3.7RRP
(1) A mortgage lender,3reversion provider2 or SRB agreement provider3 must quantify, in cash terms, any material inducement it offers to a mortgage intermediary, reversion intermediary,2SRB intermediary3 or a third party. 3(2) In quantifying the value of the material inducement, the firm must include any subsequent payments (such as a trail fee) made where the customer continues with the samehome finance transaction.22
MCOB 2.3.8GRP
(1) Quantification of any material inducement offered by the mortgage lender or reversion provider2 supports the disclosure requirements elsewhere in MCOB. Further guidance on the disclosure of any inducement in cash terms is provided in MCOB 5.6.118 G for regulated mortgage contracts other than lifetime mortgages, MCOB 9.4.124 G for lifetime mortgages and MCOB 9.4.173 G for home reversion plans.2(1A) Quantification of any material inducement offered by a SRB agreement provider
MCOB 12.5.2RRP
A firm must ensure that its charges to a customer in connection with the firmentering into, making a further advance or further release on, administering, arranging or advising on a regulated mortgage contract,2home reversion plan or regulated sale and rent back agreement2, or arranging or advising on a variation to the terms of a regulated mortgage contract,2home reversion plan or regulated sale and rent back agreement2are not excessive.1122
MCOB 6.7.1RRP
(1) Where the regulated mortgage contract is for a business purpose, a firm may choose to provide a customer with a business offer document instead of the offer document referred to in MCOB 6.4.1 R.(2) If a firm provides a customer with a business offer document in accordance with (1), it must ensure that:(a) an updated business illustration, as required by MCOB 5.7 (Pre-application disclosure for business loans), forms part of the business offer document; and(b) subject to the
MCOB 6.7.3GRP
A firm may supplement the first paragraph of text prescribed in MCOB 6.4.4 R (5)(a) to clarify that, while the regulated mortgage contract is not binding until the relevant mortgage document has been signed and funds have been released, the business offer document may form part of a wider set of negotiated facilities and that the customer is separately bound by these.