Related provisions for SUP 8A.1.3
1 - 20 of 74 items.
Under section 60(3) of the CCA, if, on an application made to the FCA by a firm carrying on a consumer credit business or a consumer hire business, it appears to the FCA impracticable for the firm to comply with any requirement of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) or the Consumer Credit (Agreements) Regulations (SI 2010/1014) in a particular case, it may direct that the requirement be waived or varied in relation to the regulated agreement and subject
An application may be made under section 60(3) of the CCA only if it relates to: (1) a consumer credit agreement secured on land; or(2) a consumer credit agreement under which a person takes an article in pawn; or(3) a consumer credit agreement under which the creditor provides the debtor with a credit that exceeds £60,260; or(4) a consumer credit agreement entered into by the debtor wholly or predominantly for the purposes of a business carried on, or intended to be carried on,
The requirement under section 64(1)(b) of the CCA to send debtors or hirers a notice of their rights to cancel a cancellable agreement within the seven days following the making of that agreement does not apply in the case of the agreements described in SUP 8A.2.5 G, if: (1) on application by a firm to the FCA, the FCA has determined, having regard to:(a) the manner in which antecedent negotiations for the relevant agreements with the firm are conducted; and(b) the information
If on an application made to the FCA by a firm carrying on a consumer hire business, it appears to the FCA that it would be in the interests of hirers to do so, the FCA may direct that subject to such conditions (if any) as it may specify, section 101 of the CCA shall not apply to consumer hire agreements made by that firm.
Under article 53 of the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No 2) Order 2013, any of the following given or made by the Office of Fair Trading which were in effect immediately before 1 April 2014 have effect as if they had been given or made by the FCA:(1) a direction given under section 60(3) of the CCA (form and content of agreements);(2) a determination made under section 64(4) of the CCA (duty to give notice of cancellation rights) and
Where the firm did not disclose to the complainant in advance of a payment protection contract being entered into (and is not aware that any other person did so at that time): (1) the anticipated profit share plus the commission known at the time of the sale; or (2) the anticipated profit share plus the commission reasonably foreseeable at the time of the sale; or (3) the likely range in which (1) or (2) would fall;the firm should consider whether it can satisfy itself on reasonable
(1) The firm should presume that failure to disclose commission gave rise to an unfair relationship under section 140A of the CCA if: (a) the anticipated profit share plus the commission known at the time of the sale; or(b) the anticipated profit share plus the commission reasonably foreseeable at the time of the sale; was: (c) in relation to a single premium payment protection contract, more than 50% of the total amount paid in relation to the payment protection contract; or(d)
The presumption that failure to disclose commission gave rise to an unfair relationship is rebuttable. Examples of factors which may contribute to its rebuttal include:(1) the CCA lender did not know and could not reasonably be expected to know or foresee the level of commission and anticipated profit share; or(2) the complainant could reasonably be expected to be aware of the level of commission and anticipated profit share (e.g. because they worked in a role in the financial
1This chapter:(1) applies to a firm with respect to consumer credit lending and a firm with respect to consumer hiring;(2) does not apply to the obligation in or under section 78(4), (4A) or (5) of the CCA on a lender to give regular statements where running-account credit is provided under a regulated credit agreement.
(1) The FCA takes the view that sections 77, 78 and 79 of the CCA should be read in a way that allows the borrower or hirer to obtain the information needed in order to be properly informed without imposing unnecessary burden on firms.(2) The statement referred to in the relevant section must be prepared according to the information to which it is 'practicable' for the firm to refer. In the FCA's view, this means practicable at the time of the request and includes information
(1) A request must be from or on behalf of the borrower under sections 77 and 78 or from or on behalf of a hirer under section 79. This would include a friend or relative, a solicitor, a claims management company or other third party. Under data protection legislation4, the lender or owner is not allowed to reveal such information to a third party without the authority of the borrower or hirer. It should therefore satisfy itself that the person making the request has proper authority
(1) The copy of the executed agreement should be a 'true copy' of the original. However, as confirmed in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB), in this context the term 'true copy' does not necessarily mean a carbon, photocopy, microfiche copy or other exact copy of the signed agreement. There is no obligation to provide a copy which includes a copy of the signature.(2) The firm can reconstitute a copy. It can do this by re-populating a template of the relevant
(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.(4)
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 the individual has not entered into an agreement to which section 155 applies within six months of an introduction:5(a) to a source of credit or of bailment (or in Scotland of hire); or5(b) to another firm that carries on credit broking of the kind specified in article 36A(1)(a) to (c) of the RAO disregarding the effect of paragraph (2) of
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 or of bailment (or in Scotland of hire), or to another firm that carries on credit broking of the kind specified in article 36A(1)(a) to (c) of the RAO (disregarding the effect of paragraph (2) of that article)5, as soon as reasonably practicable after the expiry of that six-month period a firm
(1) An individual does not need to refer to the right under section 155 of the CCA in order to be entitled to a refund.(2) A firm should respond promptly to a request for a refund. Firms are reminded of the rule in CONC 11.1.12R to return sums without undue delay, and within 30 calendar days, on cancellation of a distance contract.4(3) In circumstances where individuals request refunds and the firm knows, or ought to know, that agreements to which section 155 applies would not
1This chapter applies to every firm which:(1) is subject to the requirements as to the form and content of regulated agreements under the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and the Consumer Credit (Agreements) Regulations (SI 2010/1014) made under section 60(1) of the CCA that wishes to apply for a direction from the FCA waiving or varying those requirements;(2) is subject to the requirement under section 64(1)(b) of the CCA to send debtors or hirers
This chapter explains how the regime works for obtaining: (1) a direction from the FCA waiving or varying the requirements as to the form and content of regulated agreements under the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and the Consumer Credit (Agreements) Regulations (SI 2010/1014) made under section 60(1) of the CCA;(2) a determination by the FCA that the requirement under section 64(1)(b) of the CCA to send debtors or hirers a notice of their rights
1When determining whether to take action to impose a penalty or to issue a public censure in relation to the contraventions of a CCA Requirement, the FCA's policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA's policy includes having regard to relevant principles and factors in DEPP 6.5 to DEPP 6.5B, DEPP 6.5D and DEPP 6.7.
1When determining whether to take action to impose a suspension or restriction in relation to the contraventions of CCA Requirements, the FCA's policy includes having regard to the relevant factors in DEPP 6A.2 and DEPP 6A.4. When determining the length of the period of suspension or restriction, the FCA's policy includes having regard to relevant principles and factors in DEPP 6A.3.
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]
A firm must retain the books or other records required by CONC 6.6.3 R at least until the expiration of whichever is the longer of the following periods:(1) five years from the date on which the article was taken in pawn; or(2) where an article has become realisable by the firm, three years from the date of sale under section 121(1) of the CCA or the redemption of the article, as the case may be.[Note: regulation 2(4) of SI 1983/1565]
The entries in the books or other records, where the article has become realisable by the firm, in relation to any sale of the article under section 121(1) of the CCA, must contain the following information:(1) the date of the sale;(2) where the article was sold by auction, the name and a postal address of the auctioneer;(3) where the article was not sold by auction, the postal address of the premises at which the sale took place;(4) the gross amount realised;(5) the itemised
This section, unless otherwise stated in or in relation to a rule: (1) applies to a firm with respect to consumer credit lending;(2) applies to a firm with respect to credit broking where the firm has or takes on responsibility for providing the disclosures and explanations to customers required by this section;(3) does not apply to an agreement under which the lender provides the customer with credit which exceeds £60,260, unless the agreement is a residential renovation agreement5;(4)
For the agreements referred to in CONC 4.2.1R (3), (4) and (5), a firm within CONC 4.2.1R (1) or CONC 4.2.1R (2) should consider whether it is necessary or appropriate to provide explanations of the matters in CONC 4.2.5R (2); in particular, a firm should consider highlighting the principal consequences to the customer including the consequences of missing payments or under-paying, including, where applicable, the risk of repossession of the customer's property.[Note: section
(1) The disclosure regulations made under section 55 of the CCA which require information to be disclosed before a regulated credit agreement is made remain in force.(2) Failure to comply with the disclosure regulations has the effect that agreements are enforceable against a borrower or hirer (as defined in the CCA) only with an order of court and enforcement for that purpose includes a retaking of goods or land to which the agreement relates.(3) Other relevant disclosure requirements
(1) Before making a regulated credit agreement the firm must:(a) provide the customer with an adequate explanation of the matters referred to in (2) in order to place the customer in a position to assess whether the agreement is adapted to the customer's needs and financial situation;(b) advise the customer:(i) to consider the information which is required to be disclosed under section 55 of the CCA; and(ii) where the information is disclosed in person, that the customer is able
(1) 1This appendix sets out how:3(a) 3a firm should handle complaints relating to the sale of a payment protection contract by the firm which express dissatisfaction about the sale, or matters related to the sale, including where there is a rejection of claims on the grounds of ineligibility or exclusion (but not matters unrelated to the sale, such as delays in claims handling); and3(b) 3a firm that is a CCA lender and which has received such a complaint should consider whether
3This appendix provides for a two-step approach to handling complaints. Firms should apply it as follows: (1) a firm which is not a CCA lender should only consider step 1;(2) a CCA lender which did not sell the payment protection contract should only consider step 2, but does not have to do so if it knows the complainant has already made a complaint about a breach or failing in respect of the same contract and the outcome was that the firm which considered that complaint concluded
There may also be instances where a firm concludes after investigation at step 13 that, notwithstanding breaches or failings by the firm, the complainant would nevertheless still have proceeded to buy the payment protection contract they3 bought. CCA lenders should still go on to consider step 2 in such cases.3
3At step 2, the aspects of complaint handling dealt with in this appendix are how a CCA lender should:(1) assess a complaint to establish whether failure to disclose commission gave rise to an unfair relationship under section 140A of the CCA; and(2) determine the appropriate redress (if any) to offer to a complainant.
(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
The cumulative effect of article 20(3) of the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (the 2013 Order) and Chapter 14A of Part 2 of the Regulated Activities Order is to essentially carve out regulated mortgage contracts from regulation under the CCA and from regulation as a credit-related regulated activity.11
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),
The declaration for the purposes of articles 60H(1)(c) and 60Q(b) of the Regulated Activities Order must have the following form and content- 2“Declaration by high net worth borrower or hirer(articles 60H(1) and 60Q of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001)2I confirm that I have received a copy of the statement of high net worth made in relation to me for the purposes of article 60H(1)(d) 2or article 60Q(c) of the Financial Services and
2Declaration by high net worth borrower under an MCD article 3(1)(b) credit agreementThe declaration for the purposes of CONC 1.2.10R7 must have the following form and content-
“Declaration by high net worth borrower under an MCD article 3(1)(b) credit agreement
7I confirm that I have received a copy of the statement of high net worth made in relation to me for the purposes of CONC 1.2.10R in the FCA’s Consumer Credit sourcebook7.
I understand that by making this declaration I
A declaration for the purposes of articles 60C or 60O of the Regulated Activities Order must have the following form and content“Declaration for exemption relating to businesses(articles 60C and 60O of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001)I am/We are* entering this agreement wholly or predominantly for the purposes of a business carried on by me/us or intended to be carried on by me/us.I/We* understand that I/We* will not have the benefit
The amount of credit provided under an agreement for high-cost short-term credit for the purposes of CONC 5A.2.3 R (Initial cost cap) is the amount of credit outstanding on the day in question under the agreement, disregarding for the purposes of that rule the effect of the borrower discharging all or part of the borrower's indebtedness in accordance with section 94 of the CCA (right to complete payments ahead of time) by repayment of credit before the date provided for in the
For the purposes of this chapter, where a lender allows a borrower to make a number of drawdowns of credit (which may be expressed to be possible up to a specified amount of credit) but only with the lender's consent to each respective drawdown, each drawdown is a separate agreement for high-cost short-term credit and each agreement needs to be documented as a separate regulated credit agreement in accordance with the CCA and with the rest of CONC. This chapter applies to each
In cases where the presumption that failure to disclose commission did not give rise to an unfair relationship (in DISP App 3.3A.4E(2)) has been rebutted and the firm has concluded that the non-disclosure gave rise to an unfair relationship under section 140A of the CCA, the firm should consider what level of commission plus anticipated profit share would not have given rise to unfairness in that case, and use that amount (expressed as a percentage) at DISP App 3.7A.3E(3) or DISP
The amount of credit provided under an agreement for high-cost short-term credit for the purposes of CONC 5A.3.3 R (Initial cost cap) is the amount of credit outstanding on the day in question under the agreement, disregarding for the purposes of that rule the effect of the borrower discharging all or part of the borrower's indebtedness in accordance with section 94 of the CCA (right to complete payments ahead of time) by repayment of credit before the date provided for in the
For the purposes of this chapter, where a lender allows a borrower to make a number of drawdowns of credit (which may be expressed to be possible up to a specified amount of credit) but only with the lender's consent to each respective drawdown, each drawdown is a separate agreement for high-cost short-term credit and each agreement needs to be documented as a separate regulated credit agreement in accordance with the CCA and with the rest of CONC. This chapter applies to each
The amount of credit provided under an agreement for high-cost short-term credit for the purposes of CONC 5A.4.3 R (Initial cost cap) is the amount of credit outstanding on the day in question under the agreement, disregarding for the purposes of that rule the effect of the borrower discharging all or part of the borrower's indebtedness in accordance with section 94 of the CCA (right to complete payments ahead of time) by repayment of credit before the date provided for in the
For the purposes of this chapter, where a lender allows a borrower to make a number of drawdowns of credit (which may be expressed to be possible up to a specified amount of credit) but only with the lender's consent to each respective drawdown, each drawdown is a separate agreement for high-cost short-term credit and, where applicable, each agreement needs to be documented as a separate regulated credit agreement in accordance with the CCA and with the rest of CONC. This chapter
1The CCA Order gives the FCA the power to enforce the CCA through the application of its investigation and sanctioning powers in the Act by reference to the contravention of CCA Requirements and criminal offences under the CCA. The FCA's investigation and sanctioning powers include the following: power to censure or fine an approved person, or impose a suspension or a restriction on their approval under section 66 of the Act, for being knowingly concerned in a contravention by
For the agreements referred to in CONC 4.3.2 R, a firm should consider whether it is necessary or appropriate to provide explanations of the matters in CONC 4.5.3R (2), in particular, a firm should consider highlighting key risks to the borrower including the consequences of missing payments or under-paying, including, where applicable, the risk of repossession of the borrower's property.[Note: section 55A(6) of CCA and paragraph 3.1 of ILG][Note: Until the end of 30 September
(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)