MOTOR TRADE ASSOCIATION. Submission to. Ministry Of Business, Innovation & Employment. Draft Responsible Lending Code

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1 MOTOR TRADE ASSOCIATION Submission to Ministry Of Business, Innovation & Employment On Draft Responsible Lending Code Motor Trade Association Inc P O Box 9244 Marion Square WELLINGTON Phone 04) December 2014

2 22 December 2014 CCCFA Regulations Competition and Consumer Policy Team Ministry of Business, Innovation, and Employment P O Box 3705 Wellington 6140 Attention: Competition and Consumer Policy Team Submission: Draft Responsible lending Code This submission is from: Motor Trade Association P O Box 9244 Marion Square Wellington 6141 The contact person in respect of this submission is: Name: Tony Everett Title: Dealer Services and Mediation Ph: (04) Fax: (04) Thank you for the opportunity for MTA to provide comment on the draft Responsible Lending Code. Yours sincerely Greig Epps Industry Relations Manager

3 Introduction The Motor Trade Association (Inc) (MTA), which represents approximately 3,900 businesses within the automotive industry and allied services, takes this opportunity to submit on the Credit-Related Disclosure and Rebate Regulations - discussion document. Members of our association operate businesses ranging from heavy and light general automotive repairers, vehicle importers and distributors, vehicle sales, vehicle entry and in service inspection services, transport services including rental cars, vehicle recovery, agricultural equipment and service stations. The CCCFA and related Regulations have particular relevance and significance to our retail motor vehicle trader members. These businesses include new and used vehicle traders, and motorcycle traders. In those business sectors, MTA represents approximately 600 motor vehicle trader members. The provision of finance is a significant element within a motor vehicle dealer s business. In the vast majority of cases, dealers have business linkages with one or more established finance companies, the majority of which are likely to be members of the Financial Services Federation ( FSF ). Dealers and finance companies are typically distinct separate business entities with no ownership or management connections. In a very few cases, some dealers may operate their own financial services arm and in this context there will be some common ownership between a dealer and a finance company. When looking at the operational aspects of motor vehicle financing, generally the relevant finance company prescribes the forms and processes to be followed by the dealer, who has no scope to deviate from those requirements. In most respects, the dealer effectively serves an intermediary role between the customer and the finance company, helping the respective parties establish a financial arrangement. The credit approval decision rests solely with the respective finance company; that is, it is the financier that determines if a loan should be made to the consumer, the dealer does not participate in that decision. Interest rates and fees are set by the respective finance company. The dealer may have some small latitude to negotiate interest rates and fees albeit only within defined boundaries controlled by the respective finance company involved. MTA takes this opportunity to comment on only those aspects contained with the draft that are of particular relevance to our dealer members. MTA s submission follows the full list of questions for submitters provided within the: Draft Responsible Lending Code 1. Introduction 1.1. Please provide any comments you may have on the explanatory material in this chapter. No comments to make in this section 1.2. Please provide any comments you may have on the ability for the lender to make a judgment about the number of inquiries and the extent of information sought, as well as the extent of the assistance that should be provided based on specified factors in the Code. Does this approach strike the right balance between consumer protection, providing certainty for lenders, and minimising unnecessary compliance costs? Different products and circumstances

4 1.3. Please provide any comments you may have in relation to the aim that the Code be technology neutral, and whether the guidance in the Code allows for technology neutrality (including by reference to specific aspects of the guidance). 2. Obligations that apply before and throughout the agreement 2.1. Please provide any comments you may have on the guidance in this chapter, including any suggested revisions or additions In your view, will this guidance: (1) protect the interests of consumers; (2) promote the 2.3. Does the guidance in this area provide sufficient certainty for lenders as to how to comply with There is an obvious conflict between the exemption from the FSP and the FAA given to retail sales staff including vehicle sales, and the guidance provided within this draft RLC. MTA considers that the RLC needs to better qualify and clarify the role of retail sales staff given the exemption to them from the FSP and FAA. The RLC needs to recognise the exemption does exist, and in the context of a retail situation sales staff are most likely to be serving as information conduits for their finance company partners. Those sales staff are required to comply with all directions imposed on them by their finance company partners. This condition is difficult to conclude from the current wording of the proposed RLC For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur in these areas today: 3. Advertising 3.1. Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. Compliance will rest on the level of monitoring, scrutiny and enforcement by the appointed agencies. If adequate enforcement resources are not applied the RLC will not on its own result in better outcomes In your view, will this guidance: (1) protect the interests of consumers; (2) promote the MTA is not confident the guidance will achieve the desired outcomes in the short term. It serves a useful purpose, but compliance will rest on the interpretation of

5 requirements, and that will take some time for enforcement guidance and court judgements to emerge. For example there is no set requirement for advertisers to declare all relevant financial parameters within a finance advertisement. Without such disclosure the consumer will not be equipped to compare offers and will therefore be uninformed. A sample of recent advertisements for used cars demonstrates a wide range of disclosure levels. Comparison between offers is impossible because the level of disclosure is not sufficient or consistent. The disclosure of total payments will be a useful new obligation, but without disclosure of amount borrowed, the finance term, fees, and interest rate the consumer will not be informed. The RLC does not specify exact disclosure requirements instead it uses general statements that advertising must not be misleading, deceptive or confusing. It seems that enforcement or even court action will be required to decipher those terms within the context of actual advertising content. That process will likely take considerable time, as demonstrated within the interpretation of fees and charges within the ongoing court action involving Commerce Commission and Sportzone/MTF. That case is only now being resolved, 9 years after the CCCFA first came into effect. In the meantime very little market enforcement action has taken place. Going forward, the interpretation arguments will have to play out in the courts and industry will be left in a state of limbo with little basis for absolute guidance. Good operators will do the best they can to meet what they perceive to be the intent of the law and the RLC, while lower standard operators will continue to pursue questionable practices until challenged. Insufficient enforcement action will allow those lower standard operators the opportunity to prevail and earn a competitive advantage Does the guidance in this area provide sufficient certainty for lenders as to how to comply with No. It provides broad statements to guide actions but little in the way of specific guidance. Without defined requirements the advertiser is required to interpret the intent. If enforcement is not evident, then non-compliance will continue in some quarters perhaps the very quarters the legislative changes were designed to address For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur for advertising today: Specific practices 3.5. Do you think the specific practices set out in the guidance will lead to consumer benefits in the form of greater transparency of credit products and key features of the product? Please consider both the value of the information to the consumer balanced against the potential risk

6 of providing consumers with too much information. No refer comments in 3.1, 3.2, and 3.3 above. High-cost short-term agreements 3.6. Do you agree that it is appropriate for all advertising of high-cost short-term credit agreements to carry a risk warning? Why or why not? Yes, it is a useful contribution, but MTA is not confident people will heed those warnings, especially those in desperate need for finance. Mandatory and clear declaration of the related finance parameters and the costs will have a more significant effect, eg disclosure of equivalent annual interest rate, total repayment required, and related penalty costs would be more useful Do you have any comments in relation to the specific wording of the warning? 4. Inquiries into and assessment of borrower s requirements and objectives Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. MTA have no comment to make in this area. Our members, being car dealers, will be required to work within the guidance provided by their finance partners In your view, will this guidance: (1) protect the interests of consumers; (2) promote the 4.3. Does the guidance in this area provide sufficient certainty for lenders as to how to comply with 4.4. For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur in inquiring into a borrower s requirements and objectives today: Inquiries 4.5. Do you think that any of the inquiries set out at paragraph 4.1 should be mandatory in all cases? Why or why not? 4.6. If you are a lender, and based on your current experience, do you consider the guidance in this chapter will in practice require you to provide personalised financial advice under the Financial Advisers Act 2008, and if so how? 4.7. Please provide any comments you may have in relation to the specific guidance for high-cost short-term credit agreements, reverse mortgages, buy-back transactions, and pre-approved offers of credit.

7 5. Inquiries into and assessment of substantial hardship (borrowers) Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. MTA have no comment to make in this area. Our members, being car dealers, will be required to work within the guidance provided by their finance partners In your view, will this guidance: (1) protect the interests of consumers; (2) promote the 5.3. Does the guidance in this area provide sufficient certainty for lenders as to how to comply with 5.4. For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur for looking into a borrower s ability to repay today: Substantial hardship 5.5. Please indicate whether you have a preference for option 1 or 2, and Do you have any suggested alternative definitions? 5.6. Is the level of hardship or the threshold set out in the definitions appropriate? 5.7. In some circumstances, a borrower may be able to make repayments without substantial hardship by selling certain non-essential assets. Should the definition of substantial hardship reflect this? If so, how? Inquiries 5.8. For pawnbroking transactions where the only consequence of an inability to pay the redemption price is the loss of the pledged good, should the reasonable inquiries that should be made or the assessment of whether borrowers can repay without substantial hardship be any different? If so, how? 5.9. Do you think that any of the inquiries set out at paragraph 5.2 should be mandatory in all cases? Why or why not? For lenders, please provide any comments you may have in relation to the specific guidance for high-cost short-term credit agreements, and pre-approved offers of credit.

8 6. Inquiries into and assessment of substantial hardship (guarantors) Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. MTA have no comment to make in this area. Our members, being car dealers, will be required to work within the guidance provided by their finance partners In your view, will this guidance: (1) protect the interests of guarantors; (2) promote the confident and informed participation in credit markets by guarantors; and (3) promote and 6.3. Does the guidance in this area provide sufficient certainty for lenders as to how to comply with 6.4. For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur for looking into a guarantor s ability to meet the guarantee today: Inquiries 6.5. Are the inquiries that should be made of the borrower to assess whether it is likely that the borrower will be able to make the payments under the agreement without suffering substantial hardship also relevant for the guarantor. Why or why not? 6.6. Do you think that any of the inquiries set out at paragraph 5.2 should be mandatory in all cases for guarantors? Why or why not? 6.7. For lenders, please provide any comments you may have in relation to the specific guidance for high-cost short-term credit agreements. 7. Assisting borrowers to make an informed decision 7.1. Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. Section 7 poses a conundrum for car dealers. Given their exemption from the FSP and FAA as retail point of sale staff, they cannot take an active role in advising the customer. Their engagement must be limited to presenting the finance options for the consumer who must then consider and decide which option best suits their needs In your view, will this guidance: (1) protect the interests of consumers; (2) promote the

9 7.3. Does the guidance in this area provide sufficient certainty for lenders as to how to comply with 7.4. For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur for assisting borrower s to make informed decisions today: Communicating key features 7.5. Do the key features of a credit agreement listed at 7.2 capture the key information borrowers should have to make an informed decision as to whether to enter into a credit agreement? 8. Assisting guarantors to make an informed decision 8.1. Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. Section 8 poses the same conundrum for car dealers as section 7. Given the exemption from the FSP and FAA as retail point of sale staff, they cannot take an active role in advising the customer. Their engagement must be limited to presenting the finance options for the consumer to then consider and decide which option best suits their needs In your view, will this guidance: (1) protect the interests of guarantors; (2) promote the confident and informed participation in credit markets by guarantors; and (3) promote and 8.3. Does the guidance in this area provide sufficient certainty for lenders as to how to comply with 8.4. For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur for assisting guarantor s to make informed decisions today: Communication of information 8.5. Please provide any comments you may have on the guidance in paragraphs about when a lender should recommend that guarantors seek legal or consumer information advice, when they should require legal advice, and when they should require independent legal advice.

10 9. Credit-related insurance and repayment waivers 9.1. Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions In your view, will this guidance: (1) protect the interests of consumers; (2) promote the Yes it provides a reasonable approach. Interpreting a consumer s level of comprehension and understanding can be a difficult area and not always easy to conclude Does the guidance in this area provide sufficient certainty for lenders as to how to comply with 9.4. For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur for credit-related insurance and repayment waivers today: Communicating key features 9.5. Do the key features of a credit-related insurance agreement listed at 9.9 capture the main information borrowers require to make an informed decision as to whether to purchase creditrelated insurance? Should the Code provide further guidance on which key exclusions borrowers should be informed of? If so, how? 10. Fees Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. It is interesting to note the opportunity to base fees on likely costs. Likley costs may not eventuate. Periodic review of fee structures will highlight those instances, yet going forward it is again possible to include likely provisions. A likely provision which didn t occur may still be likely in the future. This provision seems too loose to apply as a basis for the calculation and setting of fees In your view, will this guidance: (1) protect the interests of consumers; (2) promote the Protection of consumer s interests will rest on the level of enforcement activity which is applied, and which is seen to be applied.

11 10.3. Does the guidance in this area provide sufficient certainty for lenders as to how to comply with For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur for setting fees today: a. that you would incur for compliance with the unreasonable fees provisions as amended; Reasonable standards of commercial practice Do you agree with the guidance in relation to how lenders should have regard to reasonable standards of commercial practice when setting credit fees and default fees? 11. Subsequent dealings Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. No comments to make in this section In your view, will this guidance: (1) protect the interests of consumers; (2) promote the Does the guidance in this area provide sufficient certainty for lenders as to how to comply with For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur for working with borrowers during the contract today: 12. Default and other problems Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. No comments to make in this section In your view, will this guidance: (1) protect the interests of consumers; (2) promote the

12 12.3. Does the guidance in this area provide sufficient certainty for lenders as to how to comply with For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur in relation to dealing with default today: 13. Repossession Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. No comments to make in this section In your view, will this guidance: (1) protect the interests of consumers; (2) promote the Does the guidance in this area provide sufficient certainty for lenders as to how to comply with For lenders, please provide an estimate of cost (both one-off costs and ongoing costs), over and above costs you incur in relation to repossession today: 14. Oppression Please provide any comments you may have on the guidance provided in this chapter, including any suggested revisions or additions. No comments to make in this section 15. Glossary Please provide any comments you may have on the suggested definitions in this glossary, including any suggested revisions or additions. No comments to make in this section

13 15.2. Should the definition of high-cost short-term credit agreement instead be based on definitive thresholds? How should any such thresholds be framed to avoid gaming by lenders who provide credit just outside of any such thresholds?

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