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Goods Mortgages: Updating Consumer Protection

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Goods Mortgages: Updating Consumer Protection A leading set in banking, fi nancial services and consumer law, and pre-eminent in consumer credit, Henderson Chambers fi elds a highly experienced team of barristers with both contentious and transactional expertise. Members regularly act for the UK’s fi ve largest banks as well as off shore creditors and regulatory authorities, and write for some of the key practitioners’ books. Chambers is recommended by Legal 500 for banking and fi nance law and is ranked by Chambers & Partners for consumer law. Author Christopher Adams Goods mortgages: updating consumer protection KEY POINTS It prescribes a standard form which must The Law Commission’s proposals, if implemented in their entirety, would go a long way meet 12 document requirements, failure to redressing imbalances to the detriment of consumers existing under the bills of sale to satisfy any of which renders the security legislation. bill unenforceable by the lender against the The Goods Mortgages Act may disadvantage lenders. borrower and third parties. Any additional costs to lenders using goods mortgages may be passed on to consumers. Borrowers who take out logbook loans are in need of protection, typically being on GOODS MORTGAGES: UPDATING CONSUMER PROTECTION CONSUMER UPDATING MORTGAGES: GOODS In its report ‘Bills of Sale’ published in September 2016 (the Report), the Law a low income with a poor credit history, and Commission recommends that the Bills of Sale Act 1878 (the 1878 Act) and the Bills of commonly failing to understand key terms of Sale Act (1878) Amendment Act 1882 (the 1882 Act) be repealed, and replaced by a the agreement. Default charges, interest and new Goods Mortgages Act (GMA), to apply to England and Wales but not to Scotland. the costs of the lender taking possession of and The government has accepted the recommendations subject to some qualifications, so selling the vehicle can add significantly to the after further discussions the Law Commission is likely to introduce a draft GMA Bill into borrower’s account, creating a shortfall between Parliament to come into force by 2019. As well as updating procedures and reducing the price achieved on the sale of the vehicle and the complexity of the archaic Victorian legislation, the proposed changes would the amount outstanding under the loan. The offer greater protection to consumers. This article examines the ways in which the Bills of Sale Acts fail adequately to protect proposed GMA seeks to address problems under the existing bills of sale legislation for borrowers and private purchasers because: borrowers and third parties, other than trade or finance purchasers, who unknowingly the language used in the Acts is old- buy goods which have been used to provide security for a loan (private purchasers). fashioned and difficult to understand; although the prescribed standard form for security bills is complex and parts BILLS OF SALE With certain exceptions including ships of it are duplicated on separate credit Bills of sale are documents which and aircraft, security bills may be registered agreements required by consumer credit ■transfer ownership of goods from one against any tangible moveable goods, but most legislation, lenders are unwilling to person (A) to another in circumstances where are registered against vehicles. A security bill simplify the wording in case this renders A retains possession of the goods. They are transfers ownership of the borrower’s goods the security bill void; regulated by common law rules overlaid with to the lender subject to two conditions: they provide few protective measures to statutory provisions contained in the 1878 and the lender is only permitted to take prevent lenders taking possession of goods 1882 Acts. There are two types of bills of sale: possession of and sell the goods for one of subject to security bills in the event of security bills (also known as conditional four reasons specified in s 7 of the 1882 default by the borrower, and lenders can bills), which are granted to secure the Act, including default by the borrower on take possession of the goods even if the repayment of a loan; and payments under the loan agreement; and loan has almost been paid off; absolute bills, which are granted for ownership of the goods is transferred they offer no protection to private purposes other than to secure the back to the borrower once the loan has purchasers, who acquire no rights to repayment of a loan. been repaid. the goods in the circumstances set out above; and Absolute bills are rarely used, and would By allowing borrowers to retain the goods, the High Court register is paper-based not be governed by the GMA. As the Report bills of sale create the potential for lenders and and difficult for private purchasers to recommends deregulating them entirely, this purchasers to be misled by borrowers granting use, since it can only be searched by the article will not discuss them further. Security worthless security on goods they do not own. borrower’s name and postcode or the bills, however, are used in the context of logbook The 1878 Act therefore requires bills of sale number of the security bill. loans, where the loan is secured on a vehicle to be entered on a public register held at the owned by the borrower. The number of logbook High Court which is searchable by lenders THE NEW GOODS MORTGAGES ACT loans has increased dramatically from below and prospective purchasers. The 1882 Act Despite the problems with the existing 3,000 in 2001 to over 37,000 in 2015. protects borrowers by regulating security bills. legislation, the Report concludes that logbook 162 March 2017 Butterworths Journal of International Banking and Financial Law GOODS MORTGAGES: UPDATING CONSUMER PROTECTION CONSUMER UPDATING MORTGAGES: GOODS Feature loans are an important source of credit for the date of the goods mortgage; loans exceeding £25,000 made wholly many borrowers, allowing access to larger the names and addresses of the borrower or predominantly for the purposes of a sums over a longer period than payday loans and lender; business carried on, or intended to be in circumstances where they might otherwise the obligation secured by the goods carried on, by the borrower; and be subject to higher interest rates or be mortgage; subject to certain exceptions, loans of denied credit altogether. It therefore proposes a statement that ownership of the goods more than £60,260 made to an individual repeal of the bills of sale legislation and its was being transferred to the lender in borrower where the borrower agrees replacement by a new Goods Mortgages order to secure the obligation; to forgo the protection and remedies Act (GMA). To make the terms easier for the name, address and occupation of the available if the agreement were a consumers to understand, bills of sale would witness; and regulated agreement.1 be renamed “goods mortgages” (to include a specific description of the goods. “vehicle mortgages” secured on vehicles). The Report concludes that such borrowers are Goods mortgages would exist where an Unlike bills of sale, the goods mortgage not in need of legislative protection, and that individual, defined to include consumers and document would not be required to state a therefore freedom of contract should prevail. unincorporated businesses such as sole traders fixed loan amount or specify the repayment or general partnerships, uses goods he already instalments, allowing goods mortgages Prominent statements owns as security for a loan or other monetary to be used for securing revolving credit Goods mortgage documents securing regulated obligation, while retaining possession of those facilities, overdrafts and guarantees. The credit agreements would be required to contain goods. The definition of “goods” in the GMA goods mortgage document would state that two prominent statements explaining that: would exclude land, ships, aircraft, agricultural ownership of the goods would be transferred ownership of the goods was transferred to charges and intangibles such as shares. to the borrower automatically once the loan the lender until the loan was repaid; and The GMA would apply not only where the had been repaid. Where a goods mortgage failure to keep up loan repayments could borrower retained physical possession of the document failed to comply with the above lead to the goods being repossessed. goods, but also where he granted possession of requirements, the lender would lose any right them to a third party. Goods mortgages could to the goods both as against the borrower and The statements would not be mandatory for be used to secure loans of any amount. as against third parties, although the lender goods mortgages securing exempt agreements. would still be entitled to repayment of the loan. Protecting borrowers Requirement for lenders to seek Prohibitions on goods mortgages court orders Provisions under the GMA applicable over essential household goods and Borrowers who encounter temporary financial to all goods mortgages future goods difficulties would be protected by a requirement To ensure that vulnerable borrowers could for lenders to seek court orders in certain Grounds for possession not be forced to grant goods mortgages over circumstances. Currently, s 13 of the 1882 Lenders would be unable to take possession of essential household goods, the GMA would Act provides that the lender must wait five goods subject to goods mortgages except upon: introduce a regulation-making power to days from taking possession before selling the default by the borrower on payments prohibit the granting of goods mortgages over goods, during which time the borrower may under the loan agreement; such goods. It would also prohibit the use of apply for a court order restraining the sale. default on maintenance or insurance of future goods as security for a loan unless the Logbook lenders who adhere to the Consumer the goods; loan was to be used to acquire the goods.
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