Related provisions for PERG 2.7.19H
21 - 40 of 151 items.
(1) 1MCOB 8.6A provides that a firm may only enter into an equity release transaction with a customer, or arrange such a transaction for a customer, as an execution-only sale if the customer has rejected advice, identified the product he wishes to purchase and positively elected to proceed with an execution-only sale.(2) The aim of MCOB 8.6A is to ensure that, in all sales of equity release transactions, there is one firm which advises the customer on the equity release transaction
(1) The condition in MCOB 8.6A.4R (1) does not apply in the case of a variation of a lifetime mortgage, provided that:(a) the variation would not involve the customer taking on additional borrowing beyond the amount currently outstanding under the existing lifetime mortgage, other than to finance any product fee or arrangement fee for the proposed new or varied contract; and(b) where the variation will (in whole or part) change from one interest rate to another, the firm has presented
The required additional information in MCOB 8.6A.4R (2) is:(1) for a lifetime mortgage other than one falling within MCOB 8.6A.5 R:(a) the name of the mortgage lender;(b) the rate of interest;(c) the interest rate type;(d) the price or value of the property on which the lifetime mortgage would be secured (estimated where necessary); and(e) the sum the customer wishes to borrow under it, either immediately or in the future (including the amount of any lump sum, any regular drawdown
(1) Whenever a firmenters into or arranges an execution-only sale for an equity release transaction, it must make and maintain a record of:, (a) the required information provided by the customer which satisfies MCOB 8.6A.4R (2);(b) the information in durable medium in MCOB 8.6A.4R (3);(c) the confirmation by the customer in MCOB 8.6A.4R (4) (where applicable); and(d) any advice from the firm which the customer rejected, including the reasons why it was rejected, before deciding
The scope of credit broking for the introducing activities (article 36A(a) to (c) of the Regulated Activities Order) covers regulated credit agreements and regulated consumer hire agreements. But additionally in relation to credit agreements it covers introductions concerning exempt agreements under articles 60C to 60H of that Order (other than agreements under article 60F of that Order (exempt agreements: exemptions relating to the number of repayments to be made)). Additionally
A firm must:(1) where it has responsibility for doing so, explain the key features of a regulated credit agreement to enable the customer to make an informed choice as required by CONC 4.2.5 R;[Note: paragraphs 4.27 to 4.30 of CBG and 2.2 of ILG](2) take reasonable steps to satisfy itself that a product it wishes to recommend to a customer is not unsuitable for the customer's needs and circumstances;[Note: paragraph 4.22 of CBG](3) advise a customer to read, and allow the customer
Where a credit broker ("B") is not a negotiator (within the meaning of section 56(1) of the CCA), B must, within seven working days after receiving a request in writing for any such information, which is made by a customer within 28 days after the termination of any negotiations relating to a regulated credit agreement or a regulated consumer hire agreement whether on the making of the agreement or otherwise, give to the customer notice of: (1) the name and address of any credit
A firm must not:(1) make or cause to be made unsolicited calls to numbers entered on the register kept under regulation 25 or 26 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 or to a customer who has notified the firm not to call the number being used to call; [Note: paragraph 3.9a of CBG](2) other than where:(a) [deleted]4(b) [deleted]4(c) [deleted]4(ca) (i) the firm has obtained the contact details of a customer (C) in the course of the sale or
(1) It is likely to be an inappropriate offer of an inducement or incentive to enter into an regulated credit agreement or a regulated consumer hire agreement to state that the offer in relation to the agreement will be withdrawn or the terms and conditions of the offer will worsen if the agreement is not signed immediately or within a stated period after the communication, unless the firm's offer on those terms and conditions will in fact be withdrawn or worsen in the period
In CONC 2.5.8R (14):(1) payment protection product means a product or feature of a product designed to offer customers short-term protection against potential loss of income, by providing the means for them to meet (or temporarily suspend) their financial obligations including repayments under a credit agreement. Payment protection products include, in particular, short term income protection, debt freeze or debt waiver;(2) short-term income protection means a contract of insurance
But even if advice is given in the United Kingdom, the general prohibition will not be contravened if the giving of advice does not amount to the carrying on, in the United Kingdom, of the business of advising on investments or advising on a home finance transaction1. Also, the general prohibition will not be contravened if the exclusion for overseas persons in article 72 of the Regulated Activities Order (Overseas persons) applies. That exclusion applies in relation to the giving
If a person is carrying on the business of advising on investments or advising on a home finance transaction1in the United Kingdom, he will not require authorisation if:(1) he is able to rely on an exclusion; in addition to the exclusions already mentioned (in articles 54 and 72 of the Regulated Activities Order), other exclusions that may be relevant are in Chapter XVII of Part II of the Regulated Activities Order; or(2) he is an exempt person (see PERG 2.11 (What to do now?1));
Many people may be involved in the production of a periodical publication, news service or broadcast. But if the regulated activity of advising on investments or advising on a home finance transaction1 is being carried on so that authorisation is required, the FCA's view is that the person carrying on the activity (and who will require authorisation) is the person whose business it is to have the editorial control over the content. In the case of a periodical publication, this
(1) In making the creditworthiness assessment or the assessment required by CONC 5.2.2R (1), a firm should take into account more than assessing the customer's ability to repay the credit. [Note: paragraph 4.2 of ILG](2) The creditworthiness assessment and the assessment required by CONC 5.2.2R (1) should include the firm taking reasonable steps to assess the customer's ability to meet repayments under a regulated credit agreement in a sustainable manner without the customer incurring
A firm must not base its creditworthiness assessment, or its assessment required under CONC 5.2.2R (1), primarily or solely on the value of any security provided by the customer, but this rule does not apply in relation to a regulated credit agreement under which the firm takes an article in pawn and the customer's total financial liability (including capital, interest and all other charges) is limited under the agreement to the proceeds of sale which would represent the true
A firm must not advise or encourage a customer to enter into a regulated credit agreement for an amount of credit higher than the customer initially requested if the creditworthiness assessment or the assessment required by CONC 5.2.2R (1) indicates that repayment of the higher amount would not be sustainable or the firm ought reasonably to suspect that that is the case.[Note: paragraph 4.28 of ILG]
A firm must not complete some or all of those parts of an application for credit under a regulated credit agreement intended to be completed by the customer, without the consent of the customer, unless the customer is permitted to check the application before signing the agreement. [Note: paragraph 4.30 of ILG]
A firm must not accept an application for credit under a regulated credit agreement where the firm knows or ought reasonably to suspect that the customer has not been truthful in completing the application in relation to information supplied by the customer relevant to the creditworthiness assessment or the assessment required by CONC 5.2.2R (1).[Note: paragraph 4.31 of ILG]
(1) A firm must not give a person a credit token if he has not asked for it.[Note: section 51 of CCA](2) A request in (1) must be in a document signed by the person making the request, unless the credit-token agreement is a small borrower-lender-supplier agreement.(3) Paragraph (1) does not apply to the giving of a credit token to a person:(a) for use under a credit-token agreement already made; or (b) in renewal or replacement of a credit token previously accepted by that person
Section 51 of the CCA was repealed by article 20(15) of the Financial Services and Markets Act 2000 (Regulated Activities)(Amendment)(No 2) Order 2013 (SI 2013/1881). However, section 51 is saved for the purposes of regulation 52 of the Payment Services Regulations, the effect being that the section continues to apply in relation to a regulated credit agreement in place of regulation 58(1)(b) of the Payment Services Regulations.
A firm must not unfairly encourage, incentivise or induce a customer to enter into a regulated credit agreement quickly without allowing the customer time to consider the pre-contract information under section 55 of the CCA and the explanations provided under CONC 4.2.5 R.[Note: paragraph 5.10 of ILG]
But the exclusion applies only if the principal purpose of the publication or service is not:(1) to advise on securities or relevant investments or home finance transactions1 or amounts to carry on advising on conversion or transfer of pension benefits; 5 or15(2) to lead or enable persons:(a) to buy, sell, subscribe for or underwrite securities or relevant investments; or1(b) to enter as borrower into regulated mortgage contracts, or vary the terms of regulated mortgage contracts
(1) There are two specified formats for advice appearing in writing or other legible form.(2) The first is that of a newspaper, journal, magazine or other periodical publication. For these purposes it does not matter what form the periodical publication takes as long as it can be read. This will include, for example, a newspaper appearing as a hard copy or electronically on a website. It will also include any periodical published on an intranet site.(3) The second is that of a
The exclusion applies only if the principal purpose of the publication or service is not:(1) to give advice on securities, relevant investments or home finance transactions1(see PERG 7.3.1 G); or1(2) to lead or enable persons to:(a) buy, sell, subscribe for or underwrite securities or relevant investments; or(b) to enter as borrower into regulated mortgage contracts, or vary the terms of regulated mortgage contracts entered into by them 1 as borrower on or after 31 October 2004;
Looking at the first disqualifying purpose set out in the exclusion, all the matters relevant to whether the regulated activities of advising on investments or advising on a home finance transaction1are being carried on must be taken into account (see PERG 8.24 (Advising on investments)). If the principal purpose of a publication or service is to give to persons, in their capacity as investors (or potential investors), 1 as borrowers, as reversion occupiers or reversion providers
For the second disqualifying purpose, the focus switches to assessing whether the principal purpose of a publication or service is to lead a person to engage in a relevant transaction or enable him to do so. This disqualifying purpose is an alternative to the first. So it extends to material not covered by the first. In this respect:(1) material in a publication or service that invites or seeks to procure persons to engage in a relevant transaction can be said to "lead" to those
Section 126(2) of the CCA (as inserted by the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014) provides, however, that for the purposes of section 126(1) of the CCA (a land mortgage securing a regulated credit agreement is enforceable (so far as provided in relation to the agreement) on an order of the court only) and Part 9 of the CCA (judicial control) a regulated mortgage contract which would, but for the exemption in PERG 2.7.19CG(1),
For the purposes of this chapter, the total charge for credit which may be provided under an actual or prospective agreement is the total (determined as at the date of the making of the agreement) of the charges specified in MCOB 10.4.2 R which apply in relation to the agreement, but excluding the charges specified in MCOB 10.4.4 R.
The amounts of the following charges are included in the total charge for credit in relation to an agreement, with the exceptions in MCOB 10.4.4 R:(1) the total of the interest on the credit which may be provided under the agreement; (2) other charges at any time payable under the transaction by or on behalf of the customer, whether to the firm or any other person; and(3) a premium under a contract of insurance, payable under the transaction by the customer, where the making or
(1) MCOB 10.4.2 R means, for example, that the following charges must be included within the total charge for credit:(a) any fee payable to a mortgage intermediary for arranging the contract (see MCOB 10.4.2 R(2)); and(b) any higher lending charge.(2) The FCA takes the view that charges required to be included within the total charge for credit should not be excluded on the basis of these charges being refundable in certain circumstances. (3) The FCA also takes the view that the
(1) The amounts of the following items are not included in the total charge for credit in relation to an agreement:(a) any charge payable under the transaction to the firm upon failure by the customer to do or to refrain from doing anything which he is required to do or to refrain from doing;(b) any charge:(i) which is payable by the firm to any person upon failure by the customer to do or to refrain from doing anything which he is required under the transaction to do or to refrain
This section applies:(1) to a firm with respect to consumer credit lending; and(2) where a firm has entered into a current account agreement where:(a) there is a possibility that the account-holder may be allowed to overdraw on the current account without a pre-arranged overdraft or exceed a pre-arranged overdraft limit; and (b) if the account-holder did so, this would be a regulated credit agreement.
(1) A firm must inform the account-holder in writing of the matters in (2) without delay where:(a) the account-holder overdraws on the current account without a pre-arranged overdraft, or exceeds a pre-arranged overdraft limit, for a period exceeding one month; (b) the amount of that overdraft or excess is significant throughout that period; (c) the overdraft or excess is a regulated credit agreement; and(d) the account-holder has not been informed in writing of the matters in
The amount referred to in MCOB 5.6.6 R(2) is:(1) in cases where on the basis of the information obtained from the customer before providing the illustration it is clear that the customer would not be eligible to borrow the amount he requested, an estimate of the amount that the customer could borrow based on the information obtained from the customer; or(2) where the regulated mortgage contract is a revolving credit agreement such as a secured overdraft or mortgage credit card:4(a)
Under the section heading 'Overall cost of this mortgage' where the regulated mortgage contract has an agreed term for repayment and a regular payment plan (that is, it is not a revolving credit agreement such as a secured overdraft or mortgage credit card, or a regulated mortgage contract where all of the interest rolls up, such as an open-ended bridging loan9):9(1) the following text must be included in the illustration: 'The overall cost takes into account the payments in Sections
Under the section heading 'Overall cost of this mortgage' where the regulated mortgage contract has no agreed term for repayment, (and a 12 month term has been assumed), or no regular payment plan, or both (for example, a revolving credit agreement such as a secured overdraft or mortgage credit card or a regulated mortgage contract where all the interest rolls up such as an open-ended bridging loan9):9(1) the following text must be included in the illustration: 'The overall cost
(1) The APR and the total amount payable in MCOB 5.6.34 R must be calculated on the basis of information obtained from the customer under MCOB 5.6.6 R.(2) Where there is a charge to be included in the APR and total amount payable and the precise amount of that charge is not known at the time that the illustration is provided, MCOB 10.3 (Formula for calculating the APR) sets out a number of relevant assumptions to be used. If the method for including the charge is not addressed
Under the sub-heading 'Credit card', the illustration must:(1) state if a credit card is offered with the regulated mortgage contract; and(2) if a credit card is offered and it is a mortgage credit card:(a) unless (b) applies, include the following text:'This card will not give you a number of the statutory rights associated with traditional credit cards. Your mortgage offer will tell you more about the differences.'; or(b) where the mortgage lender provides the customer with
(1) Where additional features are included in accordance with MCOB 5.6.92 R and these are credit facilities that do not meet the definition of a regulated mortgage contract or a regulated credit agreement10, the relevant parts of Section 12 of the illustration must include the following text:'This additional feature is not regulated by the FCA'.1(2) Where additional features are included in accordance with MCOB 5.6.92 R and these are credit facilities that meet the definition
A firm which takes any article in pawn under a regulated credit agreement must keep such books or other records as are sufficient to show and explain readily at any time all dealings with the article, including: (1) the taking of the article in pawn;(2) any redemption of the article; and(3) where the article has become realisable by the firm, any sale of the article under section 121(1) of the CCA.[Note: regulation 2(1) of SI 1983/1565]
Where the entries in relation to any article taken in pawn in CONC 6.6.4 R are not shown together as a whole but are shown in separate places, then in each place where entries are made the record must show:(1) the date and the number or other reference of the agreement under which the article was taken in pawn and, where separate from any document embodying the agreement, the number or other reference of the pawn-receipt;(2) the date on which the article was taken in pawn; and(3)
What is a reasonable period for the borrower to repay the credit depends on the circumstances of the case, including the terms for repayment under the agreement. Where the agreement provided for repayment in instalments, the firm should consider issuing the borrower with a schedule for repayment under which the firm would collect the credit in instalments at the same periodic intervals as under the agreement.
CONC 5A.5.3 R is a residual provision that applies to a firm established in the UK which carries on debt administration or debt collection, but where the rules in CONC 5A do not apply to a lender because the lender is established outside the UK and provides electronic commerce activities into the UK. Where a borrower gives notice to the lender referred to in CONC 5A.5.3 R, only charges which exceed the amounts set out in CONC 5A.2 or CONC 5A.3 are void. The borrower remains
Article 28B (Real time communications: introductions) exempts a real time financial promotion that relates to one or more of the controlled activities about regulated mortgage contracts, as well as home reversion plans, home purchase plans,4regulated sale and rent back agreements3, certain consumer hire agreements and relevant credit agreements4. The exemption is subject to the following conditions being satisfied:224(1) the financial promotion must be made for the purpose of,
4Rights under a relevant credit agreement are also a controlled investment. A relevant credit agreement is a credit agreement other than a regulated mortgage contract or a regulated home purchase plan. Entering into a relevant credit agreement as lender, or exercising or having the rights to exercise the rights of the lender under such an agreement, is a controlled activity under paragraph 10BA of Schedule 1 to the Financial Promotion Order, except where the agreement is for the
4Guide to potential application of MCOB 3 and CONC 3 to financial promotion of credit. This table belongs to PERG 8.17.20 G.
Subject of promotion |
MCOB 3 may apply |
CONC 3 may apply |
|
(1) |
Yes |
No |
|
(2) |
credit agreements secured on land where the lender also enters into regulated mortgage contracts as lender |
Yes |
No |
(3) |
credit agreements not secured on land, whether or not the lender also enters into regulated mortgage contracts as lender |
No |
Yes |
(4) |
credit agreements secured on land where the lender does not enter into regulated mortgage contracts as lender |
No |
Yes |
(5) |
credit agreements partly secured on land that include some unsecured credit and where the lender enters into regulated mortgage contracts as lender |
Yes |
No |
(6) |
credit agreements with features as in (1), (2) or (5) promoted in combination with other unsecured credit agreements |
Yes |
Yes |
(1) Before a P2P agreement is made, the firm must:(a) provide the prospective borrower with an adequate explanation of the matters referred to in (2) in order to place the borrower in a position to assess whether the agreement is adapted to the borrower's needs and financial situation;(b) where the P2P agreement is not a non-commercial agreement, advise the prospective borrower:(i) to consider the information which is required to be disclosed under section 55(1) of the CCA; and(ii)
(1) 1This rule applies if:(a) a firm with permission to carry on the activity of operating an electronic system in relation to lending is to facilitate the entry into a P2P agreement; (b) the prospective borrower is an individual; and(c) an individual other than the borrower (in this rule referred to as “the guarantor”) is to provide a guarantee or an indemnity (or both) in relation to the P2P agreement.(2) The firm must, before the P2P agreement is made, provide the guarantor
(1) A firm must not exercise its rights under a continuous payment authority (or purport to do so):(a) unless it has been explained to the customer that the continuous payment authority would be used in the way in question; and(b) other than in accordance with the terms specified in the credit agreement or the P2P agreement.(2) If a firm wishes a customer to change the terms of a continuous payment authority it must contact the customer and:(a) provide the customer with an adequate
A firm should not:(1) request a payment service provider to make a payment from the customer's payment account1 unless:(a) (i) the amount of the payment (or the basis on which payments may be taken) is specified in or permitted by the credit agreement or P2P agreement; and(ii) the amount of the payment (or the basis on which payments may be taken) was referred to in the adequate explanation required by CONC 4.6.2 R; or(b) the firm has complied in relation to such a request with
(1) 2This rule applies where the terms of a regulated credit agreement or a P2P agreement do not provide for a continuous payment authority and it is proposed that a customer will grant a continuous payment authority to:(a) a lender or a person who has permission to carry on the activity of operating an electronic system in relation to lending; or(b) a debt collector¸ provided that the debt collector is acting under an arrangement with the lender or the person who has permission
(1) 2Where a regulated credit agreement or a P2P agreement does not incorporate the terms of a continuous payment authority, CONC 7.6.2AR enables a continuous payment authority to be put in place (for example, for a repayment plan) without necessarily requiring an amendment to the agreement. But CONC 7.6.2AR applies only where the customer is in arrears or default, and the creation of the continuous payment authority supports the fair treatment of the customer and facilitates
Where a firm takes on responsibility for giving information to a customer or receiving information from a customer in accordance with provisions of the CCA (for example, supplying a copy of an executed regulated credit agreement under section 61A of the CCA) the firm should ensure it is familiar with the relevant statutory requirements and has adequate system and procedures in place to comply with the provision in question.
(1) Under section 155 of the CCA an individual has a right to a refund of the firm's fee (less £5) (or for that fee not to be payable) where, following an introduction to a source of credit or of bailment (or in Scotland of hire), the individual has not entered into an agreement to which section 155 applies within six months of an introduction. [Note: paragraph 6.1 of CBG](2) It is immaterial for the purposes of section 155 of the CCA why no agreement has been entered into (for
3If a customer has not entered into an agreement referred to in section 155(2) of the CCA within six months of the customer being introduced by the firm to a potential source of credit, as soon as reasonably practicable after the expiry of that six-month period a firm must by any method clearly bring to the customer's attention:(1) the right to request a refund under section 155 of the CCA; and (2) how to exercise the right to request the refund.[Note: paragraph 6.19d of CBG]
(1) Before significantly increasing:(a) the amount of credit to be provided under a regulated credit agreement; or(b) a credit limit for running-account credit under a regulated credit agreement;the lender must undertake an assessment of the customer's creditworthiness. [Note: section 55B(2) of CCA](2) A firm carrying out the assessment in (1) must consider: (a) the potential for the commitments under the regulated credit agreement to adversely impact the customer's financial
(1) 2This rule applies if, in relation to a regulated credit agreement: (a) an individual other than the borrower (in this rule referred to as “the guarantor”) has provided a guarantee or an indemnity (or both); and(b) the lender is required to undertake an assessment of the customer under CONC 6.2.1R.(2) Before doing either of the things mentioned in (1), the lender must undertake an assessment of the potential for the guarantor’s commitments in respect of the regulated credit
Where CONC 6.2.1 R or CONC 6.2.1AR2 applies to a firm: [Note: paragraph 4.2 of ILG](1) the firm must comply with CONC 5.3.2 R, CONC 5.3.4 R, CONC 5.3.5 R, CONC 5.3.6 R and CONC 5.3.7 R(2) the rules in CONC 5.3 referred to in (1) apply with the modifications necessary to take into account that CONC 6.2.1 R concerns increases in the amount of credit and in credit limits and when the increase is to take place;2(3) the guidance in CONC 5.3 applies accordingly and CONC 5.2.3 G and