1 Debt Negotiations Loan arrears and the benefit of early and appropriate engagement with banks Paul Kerr 28 th April 2014 First Choice Financial Service Ltd
2 Introduction Lender with over 20 years experience worked with AIB, National Irish Bank and Bank of Scotland (Ireland) Senior Credit Reviewer with the government Credit Review Office overviewing declined business lending decisions in both AIB & Bank of Ireland External credit assessor (loan approver) for the government backed Microfinance Ireland approving loans of up to 25,000 to SME s Banking & debt consultant with First Choice Financial Services in Limerick for over 4 years Authorised by the Central Bank of Ireland to provide debt management services to consumers
4 Debt Negotiations Two types: (1) Consumers (2) Non-Consumers
5 (1) Consumers Legislation to protect Consumers
6 Debt Negotiations 1. Code of Conduct on Mortgage Arrears Consumer Protection Code 2012
7 Debt Negotiations Code of Conduct on Mortgage Arrears 2013
8 Code of Conduct on Mortgage Arrears The CCMA requires mortgage lenders to adopt specific procedures when dealing with borrowers experiencing arrears and financial difficulties. Such procedures must be aimed at helping you as far as possible in your own particular circumstances In general, the CCMA requires lenders to wait 8 months before taking legal action about mortgages in arrears. However, this requirement does not apply if a borrower is deliberately not cooperating with the lender Regardless of how long it takes your lender to assess your case, and provided that you are co-operating, you must be given 3 months notice before they can commence legal proceedings where either: Your lender does not offer you an alternative repayment arrangement for your mortgage You do not accept an alternative repayment arrangement offered to you This will give you time to consider other options, such as voluntary surrender, voluntary sale, split mortgage or a Personal Insolvency Arrangement.
9 Code of Conduct on Mortgage Arrears MARP The Mortgage Arrears Resolution Process (MARP), laid out in Provision 18 of the CCMA, is a process whereby lenders and borrowers are expected to work together to come to an alternative payment arrangement when a borrower is in default of his/her mortgage repayment and has accrued arrears. The MARP applies in three instances: when a borrower is in pre-arrears, already in arrears or when an existing alternative payment arrangement breaks down. Its aim is to provide an alternative solution to the lenders enforcing their security through taking possession of the property and subsequently selling it.
10 Code of Conduct on Mortgage Arrears There are four stages to the MARP: Communication, Financial Information, Assessment and Resolution. Once a borrower finds himself or herself in arrears with his/her mortgage payments the MARP process will begin by the lender communicating with the borrower about this. The lender will ask the borrower to complete a Standard Financial Statement (SFS) form outlining the borrower s financial position (average income and expenditure). The lender s Arrears Support Unit (ASU) will assess the SFS provided by the borrower and on that basis determine whether an alternative payment arrangement may be entered into and if so, what form of alternative payment arrangement is best suited to the borrower s particular circumstances. The ASU must assess the SFS in a timely manner and each case on its individual merits. Once a suitable alternative payment arrangement has been decided on the basis of the assessment this arrangement will be put in place. Any legal proceedings for possession will be put on hold while the terms of this arrangement are respected. There is also an appeals process for borrowers to appeal decisions of the lender; however, under the new CCMA this is not included as part of the MARP.
11 Code of Conduct on Mortgage Arrears The MARP does not apply in the following circumstances: The borrower is deemed no co-operative. The MARP comes to an end, for example if an agreed alternative payment is no longer possible. Once the MARP no longer applies this allows the lender to commence legal proceedings to recover possession of the mortgaged property. This can be either three months from the borrowers exiting from the MARP, or eight months from the date the arrears rose, whichever is later.
12 Code of Conduct on Mortgage Arrears Not co-operating The revised CCMA expands the definition of not co-operating with the lender. You may be classified as not co-operating if you: Do not fully and honestly disclose significant information or Fail to provide relevant information within a reasonable time or Are in arrears for three months, during which you either failed to contact the lender or respond to its communications, or your response is insufficient for a complete assessment of your circumstances or Have entered an alternative repayment arrangement and three months have passed, during which you have not fully made the alternative repayments or Have not entered an alternative repayment arrangement and three months have passed, during which you have not fully paid your mortgage or have not cleared your arrears
13 Code of Conduct on Mortgage Arrears Not co-operating cont. Before classifying you as not co-operating, the lender must write to you, giving you 20 business days to take specific actions to enable it to assess your circumstances. It must warn you about the implications of not co-operating and suggest that you seek appropriate advice. It must also highlight the position about debt outstanding after repossession or sale. If you are classified as not co-operating, you lose the protections of the MARP and your lender may commence legal proceedings immediately. Resolution You may appeal the decision to classify you as not co-operating Complaints procedure Financial services ombudsman
14 MARP & Personal Insolvency There is a relationship between the MARP and the 2012 Personal Insolvency Act. In order to be eligible to apply for a Personal Insolvency Arrangement (PIA), the borrower must have been considered to be co-operating, and have participated in the MARP for a minimum of 6 months.
16 Consumer Protection Code 2012 The Code includes requirements setting out how regulated entities must deal with and treat consumers who are in arrears on a range of loans including credit cards, personal loans and buy-to-let mortgages. It does not apply to mortgages on a primary residence these are covered by the Code of Conduct on Mortgage Arrears, described previously.
17 Consumer Protection Code 2012 The Consumer Protection Code requires lenders to seek to agree an approach that will assist a consumer in dealing with an arrears problem. The Code also provides that the lender must: Have in place written procedures for handling arrears and make information available to you to assist you in dealing with arrears Where your account remains in arrears ten business days after the arrears first arose, immediately contact you to find out the reason for the arrears Ensure that the level of contact and communications from them, or from any third party acting on their behalf, is proportionate and not excessive.
18 Consumer Protection Code 2012 Lenders must not: Initiate more than 3 unsolicited communications with you, by whatever means, in a calendar month, other than correspondence required by the CCMA or other regulatory requirements. (This limit does not include missed calls or engaged numbers.) The Consumer Protection Code 2012 replaces the original Consumer Protection Code, which came into effect in Resolution Complaints procedure Financial services ombudsman
19 (2) Non - Consumers Legislation to protect Non-Consumers
20 (2) Non - Consumers Code of Conduct for Business Lending to Small and Medium Enterprises 2012
21 Code of Conduct for Business Lending to Small and Medium Enterprises 2012 This Code applies to all business lending by regulated entities. This Code shall not apply to Credit Unions. The Code s objectives are: to facilitate access to credit for sustainable and productive business propositions, to promote fairness and transparency in the treatment of SMEs by regulated entities, and to ensure that when dealing with financial difficulties cases, the aim of a regulated entity will be to assist borrowers to meet their obligations, or otherwise deal with the situation in an orderly and appropriate manner.
22 Code of Conduct for Business Lending to Small and Medium Enterprises 2012 This Code applies to regulated entities when providing the following credit products within the State to SMEs operating within the State, unless otherwise stated: Overdrafts Loans Term loans Leasing hire purchase and invoice discounting but excluding: lending to other financial institutions, syndicated, club, or multi-lender transactions, and special purpose vehicles including vehicles established for the purposes of a particular transaction.
23 Code of Conduct for Business Lending to Small and Medium Enterprises 2012 The Code recognises that for SMEs in financial difficulties, each SME needs to be considered on a case by case basis. It also recognises that for SMEs at risk of going into arrears, it is important that the borrower contacts the regulated entity to inform them of the difficulties and engages with the regulated entity to try and address the situation A regulated entity must ensure that in all its dealings with customers and within the context of its authorisation it: 1) acts honestly, fairly and professionally in the best interests of its customers and the integrity of the market; 2) acts with due skill, care and diligence in the best interests of its customers; 3) does not recklessly, negligently or deliberately mislead a customer as to the real or perceived advantages or disadvantages of any product or service;
24 Code of Conduct for Business Lending to Small and Medium Enterprises ) has and employs effectively the resources, policies and procedures, systems and control checks, including compliance checks, and staff training that are necessary for compliance with this Code; 5) seeks from its customers information relevant to the product or service requested; 6) makes full disclosure of all relevant material information, including all charges, in a way that seeks to inform the customer; 7) seeks to avoid conflicts of interest; 8) corrects errors and handles complaints speedily, efficiently and fairly; 9) does not exert undue pressure or undue influence on a customer; 10) ensures that any outsourced activity complies with the requirements of this Code; 11) without prejudice to the pursuit of its legitimate commercial aims, does not, through its policies, procedures, or working practices, prevent access to basic financial services; and 12) complies with the letter and spirit of this Code.
25 Microfinance Ireland Assistance for SMEs Microfinance Ireland provides loans to small businesses with no more than 10 employees, including sole traders and start-ups. The loans of between 2,000 and 25,000 are for commercially viable proposals that have been refused credit by the banks. Details of how to apply and forms are available on Credit Review Office If you have a small or medium business and your application for credit is refused by one of the participating banks you may apply to the Credit Review Office to have your case reviewed. To be eligible for a review your application must have been in writing. There is a bank lending application form on the website of the Credit Review Office. The fee for the review ranges from 100 up to a maximum of 250. Details of how to apply and forms are available on
26 Assistance for SMEs The Credit Guarantee Scheme (as currently structured) The Credit Guarantee Scheme aims to encourage additional lending to small and medium businesses who are commercially viable but have difficulty in accessing credit. Under the Scheme eligible applicants will be assisted in obtaining a loan and in establishing a favourable credit history. The Credit Guarantee Scheme provides Bank of Ireland and other lenders with a State Guarantee, covering eligible credit facilities for 75% of the facility value, over a three-year period. The customer is required to pay a premium of 2% per annum, to the Government, on receipt of eligible facilities. Guide to assist Many small businesses have difficulty getting credit. Your Business Your Bank (Google it!) is a guide on getting funding for small and medium businesses. It includes information on how to prepare a bank credit application.
27 NEW LEGISLATION Debt Management Services Authorisation
28 Debt Management Services Authorisation New regulations: Part V of the Central Bank Act 1997 (the Act ) has been amended by Part 10 of the 2013 Act to provide for a regulatory regime in respect of debt management firms. The Central Bank is responsible for the authorisation and supervision of debt management firms under Part V of the Act. Section 28 of the Act defines a Debt Management Firm as meaning: A person who for remuneration provides debt management services to one or more consumers, other than an excepted person.
29 Debt Management Services Authorisation The Act defines Debt Management Service as meaning: a) giving advice about the discharge of debts (in whole or in part), including advice about budgeting in connection with the discharge of debts, b) negotiating with a person s creditors for the discharge of the person s debts (in whole or in part), or c) any similar activity associated with the discharge of debts;
30 Debt Management Services Authorisation Consumer means: For the purposes of Part V means: a) an individual acting otherwise than in the course of business, or b) A micro enterprise within the meaning given by Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium sized enterprises
31 Debt Management Services Authorisation Proposed Authorisation Requirements and Standards for Debt Management Firms Following the commencement of the 2013 Act, a person shall not carry on the business of a debt management firm unless the person is the holder of an authorisation or is an excepted person under the Act. Each applicant must: comply with the Central Bank s Authorisation Requirements and Standards; and comply with the conditions of authorisation that will be imposed by the Central Bank on granting an authorisation.
32 Debt Management Services Authorisation Fitness and probity standards (minimum competency) Addendum to Minimum Competency Code 2011 The following text was recently added to Section 1.5 of the MCC: The grandfathering arrangements do not apply to persons when providing debt management services QFA is not an accepted qualification either to provide debt management advice Transitional Arrangement A person performing the specified function of providing debt management services on 1 August 2013 who does not hold a recognised qualification in respect of that specified function may, until 1 August 2017, perform the specified function of providing debt management services as if that person were a qualified person.
33 Debt Management Services Authorisation Required Qualification Providing debt management services, as defined in Part V of the Central Bank Act 1997: Accredited Product Adviser (Debt Management Services) (Institute of Banking School of Professional Finance, LIA and The Insurance Institute of Ireland) OR Accredited Product Professional (Debt Management Services) (National College of Ireland)
34 Debt Management Services Authorisation Providing Debt Management Services without Central Bank Approval will result in a significant fine and/or a term in prison There are only 13 firms in the country (as of 8 th April 2013) currently authorised to provide Debt Management Services to consumers A large number of Personal insolvency practitioners (PIPs) cannot provide informal debt advice, they can only offer advice within the scope of the Personal Insolvency Legislation PIPs are regulated by the Insolvency Service of Ireland but are not regulated to hammer out informal arrangements with banks
35 Debt Management Services Authorisation Information requirements for regulated firms when engaging with consumers: Signed Terms of Engagement Terms of Business to be provided Letter of Authority signed to engage with Banks Signed and completed Standard Financial Statement (Acts as a Fact find ) ID and address verification for Anti-Money Laundering purposed Reasons why / Statement of suitability to be given to consumer
36 Debt Management Services Authorisation Issues: Long and protracted application process Slows down engagement process, due to necessary steps now required to be compliant Banks only now becoming aware of the authorisation requirements and may be either passive, or restrictive in engagement with advisors Significant insurance and operational structure requirements Benefits: Will set professional firms apart from the rest
37 Debt Negotiations Engaging with Banks
38 How we engage with Banks Initial Step Take on client following previous steps outlined Issue a LOA with a holding letter giving days to respond with a proposal on behalf of the client Issue a Data Access Request (if necessary) which can take up to 40 working days Steps with Clients in the interim Clarifying the liability Understanding the issues Identifying possible solutions the process Final Steps Develop and implement an action plan On going advice & engagement with the Bank(s)
39 The Process with Clients Documentation review Loan agreements Bank letters Strategic review (Statement of Suitability/Reasons Why) Secured assets & other assets Devising an acceptable plan (short / medium / long term) Implementation Engagement with the Bank Negotiation Achieving realistic outcomes Output / result Managing expectations for all parties
40 Our role as a 3 rd party intermediary Debt Negotiations Validate and prepare evidence backed proposals Make the bankers job easier Formulate a plan that is a win win for both the client and the Bank Avoid legal action and/or insolvency as a solution
41 Our role as a 3 rd party intermediary Funding requests to assist refinance or other Standardised format / Professional The financial broker / agent will be dealing with banks & people whom we know and regularly send business to mutual trust They can complete multi-applications at the same time & get you the best funding package It s quick, convenient, to the point - less stress involved!
42 Debt Negotiations Consumers & Non-Consumers
43 Bank issues when engaging Failure to respond acknowledging Letter of Authority (LOA) Continued direct engagement with clients and not nominated third parties: Under the Consumer Protection Code 2012, section 8.5 at the personal consumer s request and with the personal consumer s written consent, a regulated entity must liaise with a third party nominated by the personal consumer to act on his or her behalf, in relation to arrears Poor internal management systems make sure you know the date when you sent a LOA and the location (page number) in any pack you send. One particular Bank bulk scans information and can take 5-10 minutes on occasion to locate the LOA on file in order to engage Failure to respond to complaints in a timely and professional manner Generic responses to clients which can cause confusion Continued standard arrears letters which cause panic and concern for clients even though they have a nominated 3 rd party Bank policy Kick the can down the road approach at times Genuine arrears and hardships of clients Banks at times do not care and see each clients as a number
44 Bank positives when engaging Banks policy beginning to change allowing for deals to happen Banks now more versed with the CCMA (consumers only) and CPC and are offering more suitable alternatives than interest only agreements Opportunities with non-irish banks accelerating their exit allowing better deals including write downs to happen e.g. Bank of Scotland
45 Debt Negotiations Case Studies
46 Case 1 Land deal Bank loan 1,500,000 Bank security 250,000 1,250,000 Issues: 4 * negative equity loans Negative net worth Elderly borrower; no income but some assets (cash, shares and property) Bank willing to engage but took over 2 years to reach agreement Outcome Asset disposal & settlement terms. Borrower kept their home and half of their assets with the balance to settle the liability. Full and final settlement agreed with 1m write-off of debt
47 Case 2 Partnership land deal Bank loan 750,000 Bank security 250, ,000 Issues: 2 * negative equity loans Borrowers not talking, partnership dissolved. Both borrowers in negative net worth & our client with limited income Outcome Bank asset disposal & settlement Our client offered 50k (the equity in his home) repayable over 5 years in full and final settlement of his residual debt. Deal done.
48 Case 3 Commercial (Write-down) Bank A loan 1,257,000 Bank A security 250,000 1,007,000 Issues: Personal debt & business premises used to operated their business from Negative equity loan being repaid on interest only Negative net worth of borrower No ability to repay the loan as currently structured Outcome Refinance of asset via existing Limited Company with Bank B for 280,000 (incl. 30k fixtures & fittings) Payment to Bank A of 310,000 ( 30k residual payment by borrower & 280k from refinance) 75% write down achieved
49 Case 4 Former PDH (Split Mortgage) Bank loan 216,000 Bank security 110, ,000 Issues: Negative equity loan on former family home Negative net worth Renting property in new location and limited repayment capacity after rental income received for BTL Outcome Split Mortgage achieved 57% / 43% (parked) Bank would not split if parked balance above 50% Reduced interest rate and loan extended to retirement age to allow for repayment capacity of 57% of loan balance
50 Case 5 Debt recovery firm Bank loan 220,000 Bank security 90, ,000 Issues: Negative equity loan on former family home Joint borrower both negative net worth Was paying net rent to bank ( 500) on loan repayments which were meant to be 1,500 loan was not sustainable Client breached loan conditions and was outside of MARP Outcome Provided evidence of financial capacity of borrowers which was limited agreed to avail of assisted voluntary sale (AVS) Debt owner has agreed liability at 40% of the residual debt or 52k
51 Outline of our fees and charges Hourly rate 150 per hour plus VAT A typical documentation review, strategy paper and bank proposal takes 8 10 hours Success fee also normally 2.5% of any write-off achieved If negotiating interest rate / tracker reversals success fee is 15% of any refund secured All fees agreed up front and fully detailed within our terms of business
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SCHEDULE OF OPTIONS AVAILABLE TO INDIVIDUALS IN FINANCIAL DIFFICULTY The most common options available to individuals who are unable to pay their debts are:- 1 Do nothing. 2 Obtain an unsecured debt consolidation