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| Rebates, Side Deals, Cash-Backs and Discounts - 2 June 2009
- We have recently noticed an increase in rebates, side deals, cashbacks
and early settlement discounts offered in Contracts of Sale.
Some of the rebates were not disclosed by the borrower in the initial
credit application. These were discovered when the contract was
forwarded to us around the settlement date and resulted in the credit
being re-assessed before settlement, causing angst, inconvenience
and added expense for the borrowers.
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| Banking In Brief - Issue 26 - December 2010
Chattel Financiers Careful Who You Pay - A recent Qld District Court decision provides a timely reminder of the care that must be taken by a financier under a chattel mortgage where the funds advanced pursuant to the mortgage are paid directly to the vendor of the chattels the subject of the mortgage.
Is Banking Really an Essential Service? - In June 2010 Senator Bob Brown introduced a Private Member's Bill called the Banking Amendment (Delivering Essential Financial Services for the Community) Bill 2010. The Bill i sto be considered in the current sitting of Parliament.
NSW's Proposed Identification Requirements - Increased Risk for Lenders. The NSW Land & Property Information Office released the consultation draft of their Regulations regarding the proposed reasonable steps to ensure a person signing a mortgage is who they claim to be. We are still of the view that the regulations if made will increase the fraud risk for Lenders.
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| Banking Services Alert - Ban on Exit Fees Becomes Law - 24 March 2011
In a surprise, but not unexpected, move the amendments to the National Credit Code to ban exit fees became law on 23 March 2011.
The regulation which inserts a new regulation 79A in the National Consumer Credit Protection Regulations applies to credit contracts entered into on or after 1 July 2011.
We issued an email alert on 10 March 2011 which looked out how the draft regulation would effect lenders and other participants in the finance industry if it became law. We recommend you read the earlier email alert in conjunction with this alert.
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| Banking In Brief - Issue 24 - April 2010
NSW Mortgage Identification - What is Reasonable? Queensland Lenders will already be familiar with this concept as there is already an identification requirement in Queensland. Unfortunately the New South Wals proposals went well beyond the Queensland requirements and would have imposed unreasonable requirements on Lenders.
Credit Code Legislation - Are You Ready? MacGillivrays has a variety of service options available to assist you.
On the Margin. If you make margin loans or advise clients about margin loans then you must apply to ASIC for an AFSL licence by 30 June 2010.
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| Banking Alert - Warning to Credit Licensees about Trust Account Obligations - 17 March 2011
WARNING! Do you receive monies on behalf of another? ASIC recently issued Information 136 (Info 136) dealing with the issue of “Complying with your Trust Account obligations as a Credit Licensee”.
When finance brokers, mortgage managers, aggregators and lenders applied for their Australian Credit Licence there was a question posed on the application as to whether or not the applicant held “Trust Monies”. We suspect that most applicants answered the question in the negative, assuming that they would never be in receipt of monies that would be characterised as “Trust Monies”.
However, Credit Assistants often receive valuation fees upfront and application fees to be passed on to lenders. Info 136 issued by ASIC is a timely reminder for each credit licensee to examine what monies they do receive from borrowers on account of loan applications and whether those monies are in fact impressed with a Trust.
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| Banking in Brief - Issue 23
NEW NATIONAL CREDIT REGULATION LAWS - START DATE EXTENDED
It was reported last week that January 2010 is now likely to be the new start
date for federal takeover of consumer credit regulation laws, six months later
than originally envisaged. It is expected that Parliament will pass the enabling
legislation in September this year, instead of July as was originally proposed.
EXECUTIVE REMUNERATION - THE REGULATORY DEBATE
In March 2009, John Trowbridge, Executive Member of the Australian
Prudential Regulation Authority (‘APRA’) in a speech delivered at the 2009
Remuneration Forum, not only expressed APRA’s view on this topic but
outlined possible new prudential standards to be issued by APRA.
TINY TERMS CONTRACTS- IMPLEMENTATION OF AMENDMENTS TO QLD CREDIT CODE
Our June 2008 Banking In Brief publication
referred to legislation1 that had been passed in
Queensland to amend the national Consumer
Credit Code extending its application to:
• Certain Terms Sale of Land Contracts;
• Conditional Sale of Goods Agreements; and
• Tiny Terms Contracts.
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| Banking Services Alert - NSW Extends Interest Cap Provisions
With all the changes going on in Consumer Credit Law at present some changes appear to have "flown under the radar". A case in point is the extension to the interest cap legislation in New South Wales which was buried in the Credit (Commonwealth Powers) Bill 2010 (NSW). In an alert issued by an industry association the expression "bombshell" has been used to describe this change.
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| Banking Services Alert - ASIC Release Regulatory Guide
ASIC has released regulatory guidance for credit licensees about the responsible lending obligations in the National Consumer Credit Protection Act (National Credit Act).
ASIC’s Regulatory Guide 209 Credit licensing: Responsible lending conduct obligations has been developed to help industry understand ASIC’s expectations in relation to their responsible lending obligations as credit licensees.
The release of this regulatory guide is part of ASIC’s effort to provide early guidance to assist credit licensees to comply with their responsible lending obligations on the commencement of the National Consumer Credit regime in July 2010.
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| Credit Licensing - Who's Who in the Zoo
By 1 July 2010 everyone operating in the consumer credit space will either need to be registered, appointed a credit representative or be entitled to claim an exemption from these requirements. If they are not, then they cannot operate in the credit space after 1 July 2010.
In effect this means that before 1 July 2010 you will need to identify every person that you deal with as part of your business and determine in relation to each person what category they fall under.
To assist we give you some examples
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| ASIC Releases Guidance Notes for Credit Licence Applicants
On Friday 18th December 2009, ASIC released various regulatory guides and information notes to assist persons in making applications for credit licenses. After a person has become registered to engage in credit activities ( between 1 April 2010 and 30 June 2010 ) they will then need to apply for a licence ( between 1 July 2010 and 31 December 2010 ) A Christmas present from ASIC?
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| Client Information Bulletin |
| Client Information Bulletin Issue 79 - June 2010
Do Your References Stack Up? A new website has been created to enable profiles of people to be added by anyone. Ex-employers with a grudge or co-workers could potentially add a review about your work performance and provide sensitive details to others. Could this be defamatory conduct?
Genuine Steps for Dispute Resolution. As part of the Federal Government's strategic framework principles, legislation was introduced by the Attorney-General on 16 June 2010 to require parties involved in legal disputes to take genuine steps to resolve their dispute before going to Court.
New Associates Appointed. We are delighted to advise the promotion of two of our staff to the position of Associate in our Litigation & Dispute Resolution Services Division.
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| Corporate & Business |
| PPS Reform Alert - 26 Jun 09
The Senate Committee on Legal and Constitutional Affairs made eleven recommendations to the Australian Government regarding the PPS reform. The Government in response to these recommendations has accepted in substance one of the recommendations and fully accepted the remaining ten recommendations.
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| Employment & Industrial Relations |
| Employment In Brief - Issue 8 - 31 May 2010
Are unfair dismissals becoming more trendy? When the new Fair Work Act and national Employment standards were anounced to commence on 1 January 2010 employers were concerned that this would result in an increase of unfair dismissal cases.
Multinational Employers Beware. A recent Fair Work Australia decision on an application for unfair dismissal.
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| Property Services Alert - New Pool Fences Legislation - November 2010
The new pool safety provisions that come into effect 1 December 2010 place new obligations on property owners, particularly when they sell or rent their property.The Building and Other Legislation Amendment Bill (No.2) 2010 makes a number of amendments to the Building Act 1975 and is the second stage of the Queensland Government’s pool safety strategy. The Department of Infrastructure and Planning (“the Department”) are the administrators of the register and compliance process.
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| Property Services Alert - "Free" Pay TV - November 2010
Resort guests these days expect Pay TV. That is fairly easy to provide in new buildings with purpose built cabling, but older buildings can present issues. We have had enquiries asking how turning the signal off can be acheived. The reason for the requests was to stop "freeloaders" taking the Pay TV signal for free.
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