Written by Finbar Markey of Louth Land League
The following article is our second examining the CCMA & MARP, the Mortgage Arrears Resolution Process. The first article can be found on here and is a basic introduction to what MARP is. As a quick reminder….
Lending institutions such as banks and building societies are bound by statutory codes of conduct in relation to mortgages on primary residences. This is called the CCMA (Code of Conduct on Mortgage Arrears) and is issued by the central bank. The CCMA requires that every lending institution establish a MARP, a system to deal with homeowners in arrears with the intention of reaching a “sustainable solution”. MARP outlines what the banks must do but also sets out the responsibilities of the bank and what one might loosely term “rights” that you have.
WHAT DOES UNCO-OPERATIVE MEAN?
It is our experience that the banks want to make homeowners in arrears appear “uncooperative”. If you are proven to be uncooperative then the bank can press forward with demanding voluntary surrender of the home and/or initiate legal proceedings. Here are the reasons a person may be deemed uncooperative under the CCMA….
- Fails to make a full and honest disclosure of information to the lender, that would have a significant impact on his/her financial situation.
- Fails to provide information, relevant to the borrower’s financial situation, within the timeline specified by the lender in accordance with Provision 34 (timeframes must be reasonable).
- Where the borrower has not entered into an alternative repayment arrangement, and (i) has failed to meet his/her mortgage repayments in full in accordance with the mortgage contract; or (ii) meets his/her mortgage repayments in full in accordance with the mortgage contract but has an arrears balance remaining on the mortgage.
- Where the borrower has entered into an alternative repayment arrangement, and during which the borrower has failed to meet in full repayments as specified in the terms of an alternative repayment arrangement.
- Where the borrower has failed to make contact with, or respond to any communications from, the lender or a third party acting on the lender’s behalf.
- Where the borrower has made contact with, or responded to communications from, the lender or a third party acting on the lender’s behalf but has not engaged in such a way that enables the lender to complete an assessment of the borrower’s circumstances.
A homeowner cannot be deemed uncooperative unless a warning letter, required in accordance with Provision 28 of the CCMA, has been issued to the borrower and the borrower has not carried out the action(s) specified in that letter.
Some further requirements from the CCMA include….….
- A lender must assist borrowers by ensuring that all requests from borrowers for documentation and information, required for the purposes of applying for State supports in relation to mortgages, are processed within ten business days of receipt of the request.
- At the borrower’s request and with the borrower’s written consent, the lender must liaise with a third party nominated by the borrower to act on his/her behalf in relation to his/her arrears situation. This does not prevent the lender from contacting the borrower directly, in relation to other matters, or issuing communications required under this Code directly to the borrower. (3rd Party nominees can also slow down procedures.
- As soon as a borrower goes into arrears a lender must communicate promptly and clearly with the borrower to establish in the first instance why the repayment schedule in accordance with the mortgage contract, has not been adhered to. (If this is not complied with, did the bank facilitate your arrears?
- Lenders are restricted from imposing charges and/or surcharge interest on arrears arising on a mortgage account in arrears to which this Code applies, unless the borrower is not co-operating.
- A lender must ensure that all meetings with borrowers in relation to arrears or pre-arrears are conducted with utmost privacy.
- A lender must ensure that it has in place a Mortgage Arrears Resolution Process as a framework for handling cases as specified in Provision 18 below.
The MARP must incorporate the steps set out in the CCMA, i.e.: communication with borrowers; financial information; assessment and resolution. A lender must ensure that the MARP framework is applied to the following cases:
- A mortgage account where arrears have arisen on the account and remain outstanding, 31 calendar days from the date the arrears arose.
- A pre-arrears case.
- Where an alternative repayment arrangement put in place breaks down.
- Where the term of an alternative repayment arrangement put in place expires.
The Banks sometimes will try to by-pass MARP if you are not in the know. In doing so they hope you will be convinced to hand your keys over without the formalities of MARP. Do not be fooled!!
A lender must produce and implement a policy regarding communications with borrowers. That policy must be approved by the board of directors.A lender must ensure that:
- The level of communications from the lender, or any third party acting on its behalf, is proportionate and not excessive, taking into account the circumstances of the borrowers, including that unnecessarily frequent communications are not made.
- Communications with borrowers are not aggressive, intimidating or harassing.
- Borrowers are given sufficient time to complete an action they have committed to before follow up communication is attempted. In deciding what constitutes sufficient time, consideration must be given to the action that a borrower has committed to carry out, including whether he/she may require assistance from a third party in carrying out the action.
- Steps are taken to agree future communication with borrowers.
UNSOLICITED PERSONAL VISITS
A lender may only make an unsolicited personal visit to a borrower’s primary residence in the following circumstances:
(i) When all other attempts at contact in relation to the borrower’s arrears have failed; and
(ii) Immediately prior to classifying a borrower as not co-operating.
Where a lender wishes to make an unsolicited personal visit, the lender must give the borrower at least five business days’ notice, on paper or another durable medium, and must provide the specified timeframe within which it intends to make the visit. The specified timeframe must be no longer than 15 business days from the date of notification (including the five business days’ notice).
COLLECTING YOUR INFORMATION
A lender must use the standard financial statement to obtain financial information from a borrower in arrears or in pre-arrears. The lender must pass the completed standard financial statement to its ASU immediately on receipt and provide a copy of the standard financial statement to the borrower. The lender may require the borrower to provide supporting documentation to corroborate the information provided in the standard financial statement.
Where the lender imposes a timeline for return of information, including a standard financial statement, the timeline must be fair and reasonable and it must reflect the type of information requested and whether the borrower may need to obtain the information from a third party.
OFFERING AN ALTERNATIVE ARRANGEMENT
In order to determine which options for alternative repayment arrangements are viable for each particular case, a lender must explore all of the options. A lender must document its considerations of each option examined including the reasons why the option(s) offered to the borrower is/are appropriate and sustainable for his/her individual circumstances and why the option(s) considered and not offered to the borrower is/are not appropriate and not sustainable for the borrower’s individual circumstance. A lender must carry out a review of an alternative repayment arrangement at any time, if requested by the borrower.
A lender must have an appeals process to enable a borrower to appeal in relation to a decision of the lender, including:
- a) where an alternative repayment arrangement is offered by a lender and the borrower is not willing to enter into the alternative repayment arrangement;
- b) where a lender declines to offer an alternative repayment arrangement to a borrower; and
- c) where a lender classifies a borrower as not co-operating, and for this purpose must establish an Appeals Board to consider and determine any such appeals submitted by borrowers
The Appeals Board must be comprised of three of the lender’s senior personnel, who have not been involved in the borrower’s case previously. At least one member of the Appeals Board must be independent of the lender’s management team and must not be involved in lending matters, for example, an independent member of the lender’s Audit Committee or an external professional such as a solicitor, barrister, accountant or other experienced professional.
A lender must have in place a written procedure for the proper handling of appeals. At a minimum, this procedure must provide that…
- The Appeals Board will only consider written appeals.
- The lender must acknowledge each appeal on paper within five business days of the appeal being received.
- The lender must provide the borrower with the name of one or more individuals appointed by the lender to be the borrower’s point of contact in relation to the appeal, until the Appeals Board adjudicate on the appeal.
- The lender must provide the borrower with a regular written update on the progress of the appeal, at intervals of not greater than 20 business days.
- The lender must consider and adjudicate on an appeal within 40 business days of having received the appeal.
- The lender must notify the borrower on paper or another durable medium, within five business days of the completion of the consideration of an appeal, of the decision of the Appeals Board and explain the reasons for the decision and the terms of any offer being made.
- The lender must also inform the borrower of his/her right to refer the matter to the Financial Services Ombudsman and must provide the borrower with the contact details of that Ombudsman.
- A lender must allow the borrower a reasonable period of time to consider submitting an appeal to the Appeals Board, which must be at least 20 business days from the date of notification of the decision of the lender’s ASU.
This concludes our article/review of the MARP as set out in the CCMA. There is a mine of information in this article for those currently within MARP or who wish to be assessed under MARP. There are numerous rules and procedures that the Bank must follow, and opportunity for you to delay the process by insisting the bank does as set out in the CCMA and MARP. Please take advantage of such opportunities for delay.
Source : http://landleague.blogspot.ie/2014/12/the-ccma-marp-education-to-defend-your.html