Mortgage industry could face massive class action

As we predicted, a massive class action lawsuit is being planned on behalf of “Australian bank customers that have entered into mortgage finance agreements with banks since 2012”.

If loans made were “unsuitable” as defined by the legislation, there is potential recourse. This could be a significant risk to the major players if it gains momentum.  But we think individuals must take some responsibility too!

As the AFR put it –

Lawyers’ representing up to 300,000 litigants are planning an $80 billion action against mortgage lenders, mortgage brokers and financial regulators in a class action that would dwarf previous actions.

…Roger Brown, a former Lloyds of London insurance broker, said he already has about 200,000 borrowers ready to join the action and has $75 million backing from UK and European investors.

“There has been a scam,” he said about mortgage lending to Australian property buyers. “But the train has hit the buffers and there needs to be recompense,” he said.

Law firm Chamberlains has been appointed to act in the planned class action lawsuit, which has been instructed by Roger Donald Brown of MortgageDeception.com in the action that aims to represent various Australian bank customers that are “incurring financial losses as a result of entering into mortgage loan contracts with banks since 2012”.

The law firm is currently calling on bank customers to join the class action, led by Stipe Vuleta, if they have “incurred financial losses due to irresponsible lending practices”.

The MortgageDeception site says:

Those who have entered into loans with banks to purchase residential properties since 2011 are about to encounter difficulties. Since 1995, banks in the United Kingdom, Ireland, Australia and New Zealand have been making massive and obscene profits from providing finance to property purchasers. These banks have cared little about the lending practices adopted by them, and reckless lending has brought about huge and unsustainable increases in property prices.

These lending practices are now leading to problems for both intending buyers and existing owners of property.

We believe that the banking industry and its regulators have intentionally turned a blind eye to the irresponsible lending that has been taking place.”

For Australian bank customers that have entered into mortgage finance agreements with banks since 2012, we have appointed the leading Canberra-based law firm of Chamberlains, www.chamberlains.com.au, to act in the planned class action lawsuit. The partner in charge is Mr Stipe Vuleta.

 

Super Is A Lottery – Productivity Commission

The Productivity Commission has released their draft report on the $2.6 trillion superannuation system.  And they have done it again! A powerful ~500 pages of insight which cuts to the heart of the system. They raise some very imp0ortant points which shows the system is a lottery. They call for substantial reform. Five million member accounts are being shortchanged.

We see some similar patterns of behaviour  to those revealed in the current Royal Commission.  Not working for the best outcomes of members. Poor governance. Excessive fees. Poor disclosure and hidden charges and commissions. No wonder more households have chosen self managed super alternatives! They also question the current regulatory framework.

Performance varies thanks to fees

Embedded fees and multiple funds erode returns significantly, especially from “retail” funds. Australians pay over $30 billion a year in fees on their super (excluding insurance premiums).

Fees can have a substantial impact on members — for example, an increase in fees of just 0.5 per cent can cost a typical full-time worker about 12 per cent of their balance (or $100 000) by the time they reach retirement.

Fees charged by retail funds remain relatively high, at least for choice products. Roughly 14 per cent of member accounts appear to be paying annual fees in excess of 1.5 per cent of their balances. Fees can explain a
significant amount of the variation in net returns across super funds. Funds that charge higher fees tend to deliver lower returns, once both investment and administration fees have been netted off. Moreover, at least 2 per cent of accounts are still subject to trailing adviser commissions — despite such commissions being banned for new accounts by the Future of Financial Advice laws.

The Government says this highlights that some superfund operators have their snout firmly in the trough! Many of these reside within the big banks!

There is no shortage of regulation in the super system. Regulation is essential for a complex system holding large amounts of money and characterised by many disengaged members and potential conflicts of interest. But at times the regulators appear too focused on funds and their interests rather than on what members need.

Regulators need to focus more on member outcomes

The key regulators — APRA and ASIC — are doing well in their core duties of prudential regulation (APRA) and financial product and advice regulation (ASIC). There have been improvements over many years, and these will continue with recently proposed reforms to boost each regulator’s toolkit. Legislating an ‘outcomes test’ for MySuper products will give APRA greater scope to lift standards and remove authorisation from funds that are failing to act in the best interests of members (especially on mergers). And ASIC’s new product intervention powers will strengthen its ability to guard against upselling.

However, there is some confusion around the two regulators’ respective roles, given both have long held powers to police bad behaviour by trustee boards. For example, ASIC has traditionally been responsible for regulating conflicts of interest, but APRA has increasingly encroached on this role through its prudential standard setting. While much of APRA’s work is pre-emptive and out of public view, ASIC has traditionally been reactive (responding to misconduct only after the fact) and public. It has become increasingly unclear which regulator has primary responsibility for trustee conduct — with the risk of misconduct falling between the cracks and a lack of clear regulator accountability.

Strategic conduct regulation appears at times to be missing in action. Ideally, this would involve a regulator proactively identifying actual or potential instances of material member harm, investigating the underlying conduct and taking enforcement action in a way that provides a valuable public deterrent to future poor conduct. To date, there has been a deficit of public exposure of poor conduct (and associated penalties) to demonstrably discourage similar behaviour by others — now and in the future.

There are yawning gaps in data

A further area of weakness is how data on the system are collected. The regulators’ data collections are largely focused on funds and products, with a deficiency of member-based data. And there are major gaps and inconsistencies in the datasets held by regulators — such as the returns and fees experienced by members of individual choice products, funds’ outsourcing arrangements and details of the insurance members hold through super. Our funds survey was designed to plug some of these gaps, but — as noted above — many responses fell well short of ‘best endeavours’, which of itself proved revealing .

Regulators have done much to improve the breadth and depth of their data holdings in recent years, but this has been off a low base. Major differences in definitions persist across regulators, and poor quality disclosure by funds appears to go unpunished. Progress has been slow in some areas because of industry opposition (largely on the basis of short-term compliance costs) and the lack of a strong member voice to give impetus to change.

The result is poor transparency, which leaves members in the dark as to what they are really paying for and makes it harder for engaged members to compare products and identify the best performing funds. This suppresses competitive pressure on the demand side, and gives rise to the perverse risk of worse outcomes for members who do get engaged. The lack of transparency also makes it hard for regulators to effectively monitor the system and to hold funds to account for the outcomes they

The draft report makes the following key points:

  • Australia’s super system needs to adapt to better meet the needs of a modern workforce and a growing pool of retirees. Currently, structural flaws — unintended multiple accounts and entrenched underperformers — harm a significant number of members, and regressively so. Fixing these twin problems could benefit members to the tune of $3.9 billion each year. Even a 55 year old today could gain $61 000 by retirement, and lift the balance for a new job entrant today by $407 000 when they retire in 2064.
  • Our unique assessment of the super system reveals mixed performance. While some funds consistently achieve high net returns, a significant number of products (including some defaults) underperform markedly, even after adjusting for differences in investment strategy. Most (but not all) underperforming products are in the retail segment. Fees remain a significant drain on net returns. Reported fees have trended down on average, driven mainly by administration costs in retail funds falling from a high base. A third of accounts (about 10 million) are unintended multiple accounts. These erode members’ balances by $2.6 billion a year in unnecessary fees and insurance.The system offers products and services that meet most members’ needs, but members lack access to quality, comparable information to help them find the best products.  Not all members get value out of insurance in super. Many see their retirement balances eroded — often by over $50 000 — by duplicate or unsuitable (even ‘zombie’) policies.
  • Inadequate competition, governance and regulation have led to these outcomes. Rivalry between funds in the default segment is superficial, and there are signs of unhealthy competition in the choice segment (including the proliferation of over 40 000 products). The default segment outperforms the system on average, but the way members are allocated to default products leaves some exposed to the costly risk of being defaulted into an underperforming fund (eroding over 36 per cent of their super balance by retirement). Regulations (and regulators) focus too much on funds rather than members. Subpar data and disclosure inhibit accountability to members and regulators.
  • Policy initiatives have chipped away at some of the problems, but more changes are needed.
  • A new way of allocating default members to products should make default the exemplar.Members should only ever be allocated to a default product once, upon entering the workforce. They should also be empowered to choose their own super product by being provided a ‘best in show’ shortlist, set by a competitive and independent process.An elevated threshold for MySuper authorisation (including an enhanced outcomes test) would look after existing default members, and give those who want to get engaged products they can easily and safely choose from (and compare to others in the market). This is superior to other default models — it sidesteps employers and puts decision making back with members in a way that supports them with safer, simpler choice.
  • These changes need to be implemented in parallel to other essential improvements. Stronger governance rules are needed, especially for board appointments and mergers.  Funds need to do more to provide insurance that is valuable to members. The industry’s code of practice is a small first step, but must be strengthened and made enforceable.  Regulators need to become member champions — confidently and effectively policing trustee conduct, and collecting and using more comprehensive and member-relevant data.

Written submissions can be made by Friday 13 July 2018.

Australians Ready to Switch – COBA

COBA says that new research has found the Banking Royal Commission has made Australians more receptive to banking alternatives and switching their banking.

An Essential Media poll, commissioned by the Customer Owned Banking Association, found 1 in 3 people are more likely to consider switching their banking institution.

 

The poll also found 8% say they have already changed their provider. A further 17% say the Royal Commission has led them to consider changing, but they haven’t yet, while an additional 18% are not sure if they will consider changing.

“These findings back up the increase in interest from Australians looking to enjoy the benefits of customer owned banking,” COBA CEO Michael Lawrence said.

“The feedback we’re getting is that there is great interest in a model that puts customers first, where 100% of profits are used to benefit customers.

“The poll shows people are ready to switch to an alternative where customer interests are not in conflict with shareholder interests.

“The ‘Own Your Banking‘ campaign we launched this week is a response to encouraging support we have already seen for mutual banks, credit unions and building societies. We are particularly keen to target our campaign toward the Australians who are considering changing and those undecided.”

Customer owned banking institutions are already seeing this trend.

As Greater Bank CEO Scott Morgan says: “Customer focus is more than just one of the values of Greater Bank, it’s the foundation on which the Bank was established and an important aspect customers are increasingly looking for. Recently we have enjoyed the benefits of this focus with the Bank experiencing some of the highest levels of customer growth we have seen in many years.”

“We are encouraged by positive consumer sentiment towards the customer owned alternative,” COBA CEO Michael Lawrence said.

Cash Converters pays $650,000 due to poor debt collection practices

ASIC says an ASIC surveillance found that Cash Converters Personal Finance Pty Ltd (‘Cash Converters’) had systematically failed to meet regulatory guidelines on debt collection practices, including by too frequently contacting consumers.

ASIC found that as a result of poor internal controls and policies Cash Converters routinely breached Regulatory Guide Debt collection guideline: for collectors and creditors (RG 96), which recommends that consumers be contacted regarding a debt not more than three times per week or 10 times per month. These guidelines are based on legislative prohibitions on harassment and coercion.

Cash Converters also provided incorrect information to consumer credit reporting agency Equifax. This may have resulted in up to 38,500 customers being reported with inaccurate amounts owing over a one-month period.

In response to ASIC’s concerns, Cash Converters is outsourcing all debt collection work to a specialist third party debt collector. ASIC has also imposed licence conditions on Cash Converters to require it to obtain ASIC’s consent before returning debt collection activity in-house. Cash Converters has also worked with Equifax to ensure all incorrect credit listings have been removed.

The company has paid a $650,000 community benefit payment to help fund the National Debt Helpline. The Helpline assists consumers who have trouble managing debt or paying bills.

ASIC Deputy Chair Peter Kell said, ‘Consumers expect to be treated fairly and in a manner that complies with consumer protection laws. ASIC expects all financial service providers to have appropriate systems and controls in place to ensure that debt collection practices are consistent with the Guidelines. It is also critical that licensees ensure that credit information provided to credit bureaus is accurate.’

Consumers seeking assistance can contact the National Debt Helpline on 1800 007 007.

Background

Safrock Financial Corporation (Qld) Pty Ltd, a related company to Cash Convertors, was responsible for providing the incorrect information to consumer credit reporting agency Equifax. The credit listings indicated the total amount of the debt owing by consumers, rather than the outstanding balance.

ASIC has issued Regulatory Guide RG 96 Debt collection guideline: for collectors and creditors setting out guidance to help creditors who are directly involved in debt collection and specialist external agencies who provide debt collection services to comply with their legal obligations under Commonwealth consumer protection laws.

The National Debt Helpline, coordinated by Financial Counselling Australia, is a not-for-profit service that assists consumers in managing debt.  Approximately half of the calls received by the Helpline involve debt collected by a debt collection agency.  The volume of calls for the Helpline has increased each year since the inception of the Helpline in 2012.  The Helpline currently receives, on average, over 14,000 calls per month.

ASIC’s MoneySmart website has information about dealing with debt collectors, including how and when they can contact consumers. MoneySmart also provides guidance for consumers about checking and correcting any wrong listings on their credit report.

Federal Court finds Westpac traded to affect the BBSW and engaged in unconscionable conduct

ASIC says Justice Beach of the Federal Court today found that Westpac engaged in unconscionable conduct under s12CC of the Australian Securities and Investments Commission Act 2001 (Cth) by its involvement in setting the bank bill swap reference rate (BBSW) on 4 occasions.

In civil proceedings brought by ASIC, the Court found that on these occasions, Westpac traded with the dominant purpose of influencing yields of traded Prime Bank Bills and where BBSW set in a way that was favourable to its rate set exposure.

The court also found Westpac had inadequate procedures and training and had contravened its financial services licensee obligations under s912A(1)(a), (c), (ca) and (f) of the Corporations Act 2001 (Cth)

His Honour said in his judgement, “Westpac’s conduct was against commercial conscience as informed by the normative standards and their implicit values enshrined in the text, context and purpose of the ASIC Act specifically and the Corporations Act generally.”

A further hearing of this proceeding on penalty and relief will be held on a date to be determined.

Background

ASIC commenced legal proceedings in the Federal Court against the Australia and New Zealand Banking Group (ANZ) on 4 March 2016 (refer: 16-060MR) and against National Australia Bank (NAB) on 7 June 2016 (refer: 16-183MR).

On 10 November 2017, the Federal Court made declarations that each of ANZ and NAB had attempted to engage in unconscionable conduct in attempting to seek to change where the BBSW was set on certain dates and that each bank failed to do all things necessary to ensure that they provided financial services honestly and fairly. The Federal Court imposed pecuniary penalties of $10 million on each bank (refer: [2017] FCA 1338).

On 20 November 2017, ASIC accepted enforceable undertakings from ANZ and NAB which provides for both banks to take certain steps and to pay $20 million to be applied to the benefit of the community, and that each will pay $20 million towards ASIC’s investigation and other costs (refer: 17-393MR).

On 30 January 2018, ASIC commenced legal proceedings in the Federal Court against the Commonwealth Bank of Australia (CBA) (refer: 18-024MR).

On 8 May 2018, CBA announced that ASIC and CBA reached an in-principle agreement to settle ASIC’s claims (refer: CBA ASX Announcement). CBA and ASIC will be making an application to the Federal Court for approval of the settlement.

ASIC has previously accepted enforceable undertakings relating to BBSW from UBS-AG, BNP Paribas and the Royal Bank of Scotland (refer: 13-366MR, 14-014MR, 14-169MR). The institutions also made voluntary contributions totaling $3.6 million to fund independent financial literacy projects in Australia.

In July 2015, ASIC published Report 440, which addresses the potential manipulation of financial benchmarks and related conduct issues.

On 28 March 2018, Parliament passed legislation to implement financial benchmark regulatory reform.

On 21 May 2018, the new BBSW calculation methodology commenced, calculating directly from market transactions during a longer rate-set window and involving a larger number of participants. This means that the benchmark is anchored to real transactions at traded prices (refer: 18-144MR).

Fox Symes pays $37,800 for misleading advertising

ASIC has issued three infringement notices to debt management firm Fox Symes and Associates Pty Ltd (Fox Symes) for making potentially misleading statements in its advertising. The company has paid a total of $37,800 in penalties.

ASIC took action against Fox Symes after it made a number of potentially misleading representations in banner advertisements, Google ads and on its website. These representations included Free Debt Assistance’,‘Reduce Debt in Minutes’ and 15sec Approval’.

ASIC was concerned that such statements misrepresented the cost and speed of Fox Symes’ debt management services.

ASIC Deputy Chair Peter Kell said ‘Debt management firms are often engaging with particularly vulnerable consumers who are seeking assistance with their debts. They should be careful not to misrepresent their services using high impact terms like ‘free’, ‘minutes’ and ‘seconds’ suggesting that debt assistance will be quick and at no cost.’

Background

Free Debt Assistance’ appeared in a banner advertisement and on the Fox Symes website. Fox Symes did not disclose to consumers that there was a limit to the ‘free debt assistance’ and that charges apply for most of Fox Symes’ services. The ‘free’ component referred to the initial first phone consultation.

Reduce debt in minutes appeared in banner advertisements. As Fox Symes’ services generally require engagement with third parties, a reduction in debt cannot feasibly be achieved in minutes, seconds or any other similar short period of time.

15sec approval appeared in Google paid Adword results. Where Fox Symes provides credit services, the responsible lending requirements under the National Consumer Credit Protection Act 2009 (Cth) apply. Approval could not be provided within such short timeframes.

Fox Symes voluntarily amended its advertising once ASIC raised its initial concerns.

Fox Symes is the holder of Australian Credit Licence 393 280 which authorises it to engage in credit activities other than as a credit provider.

Fox Symes was issued with three infringement notices for the representations. Each infringement notice was for a penalty of $12,600.

The payment of an infringement notice is not an admission of a contravention. ASIC can issue an infringement notice where it has reasonable grounds to believe a person has contravened certain consumer protection laws.

Evidence from the banking royal commission looks like history repeating itself

From The Conversation.

Do banks learn from the past? From watching the questioning of elderly disability pensioner Carolyn Flanagan at the Financial Services Royal Commission, it seems not.

In the High Court of Australia on May 12 1983, one case tested the limits of a concept called “unconscionability”. This is a difficult area of law to prove, as the parties involved usually have signed a commercial agreement.

You are normally legally bound by what you sign, in the form of a contract. This was established in an English case in 1934 called L’Estrange v F Graucob Ltd and has been since followed in UK and Australian law.

However, sometimes the law intervenes because the party signing the contract is at such a disadvantage that it is inequitable in the eyes of the court.

The 1983 case involved Mr and Mrs Amadio, who were Italian migrant parents. A bank manager went to their home and asked them to sign a mortgage (secured against their family home) for their son to open a business. No one explained that the son did not have the experience to run a business and that the outcome of not paying back the loan was to lose their home.

The Amadio family did not speak much English and no one provided a translator nor independent legal advice. The mortgage documents were signed on March 25 1977. The son soon failed to make repayments and the Commercial Bank of Australia, foreclosed on the parents’ property (the family home).

The High Court ruled in May 1983 that the bank had acted unconscionably and that the contract should be terminated on equitable grounds.

Over 30 years later, Westpac Bank is signing a guarantee for a daughter’s business loan, with an elderly and partially blind mother. As Commissioner Hayne noted, Ms Flanagan had signed the documents but not understood them or their consequences. The commissioner was unimpressed with any “independent advice” supposedly provided to the parties.

Westpac tried to regain the property as per the financial guarantee and did reach a settlement that Ms Flanagan could stay in the home until she sold it or passed away. This sounds very similar in law and facts to the Amadio decision.

The original unconscionable case of Amadio, was based on the law of equity (a branch of case law, based on concepts of fairness). This compares to federal and state government laws such as the Trade Practices Act 1974, which the Australian Consumer Law replaced in 2010. Section 20 of this law preserves the concepts of unconscionability under the “unwritten law” (a way of saying common laws and equitable laws).

More significantly, an unconscionable conduct laws were introduced to cover the provision of goods and services under the Commonwealth law in section 21 of Australian Consumer Law.

The government regulator that enforces such laws is the Australian Competition and Consumer Commission (ACCC). Unfortunately, as with many things, the law is more complex and if financial services are involved, then the Australian Securities and Investments Commission (ASIC) also gets involved.

ASIC in its own legislation covers unconscionable conduct and misleading conduct. There are also other agencies that can have jurisdiction to investigate and bring legal actions as necessary, such as State Consumer Affairs Commissions or Small Business Commissions.

Unfortunately this appears not to have helped Carolyn Flanagan and many others who made submissions to the royal commission.

This is another great example of how we in Australia can have plenty of laws and regulations, but the real questions: are the laws actually enforced and do we ever learn lessons from history?

Author: Michael Adams, Dean, School of Law, Western Sydney University

Lack Of Transparency In Unregulated Non-Bank SME Lending Market

From theBankDoctor.

Prospa’s impressive growth trajectory is set to receive a boost when it becomes Australia’s first online small business lender to list on the ASX. But the prospectus exposes issues of transparency for the acknowledged market leader in what is a largely unregulated market.

Propsa will raise $146m of new capital of which $100m will fund the growth of its loan book and investment in new products and markets while $46m will enable existing shareholders and management to take some money off the table.

Since its establishment in 2012, Propsa has lent over $500m to Australian SMEs and has a current net loan book of $200m. It has won or placed highly in many awards including Deloitte TechFast 50, Telstra Business Awards, KPMG Fintech 100 and AFR Fast Starters.

Prospa doesn’t really compete head-on with the banks but rather its niche is those SMEs that need relatively small amounts of money in a hurry. It’s average loan size is $26,000 and 98 per cent of loans are for less than $100,000. The average term is 11.7 months and 94 per cent of loans are for 12 months or less.

Perhaps the main reason SMEs seek funding from Prospa is that they know they can get an immediate answer and if their application is approved they can have the money in their bank account within 24 hours. Another is its “pain free customer experience” as evidenced by a Net Promoter Score of 77 which compares to the average of the big four banks of -9. And thirdly, they dont have to offer security other than a personal guarantee.

Borrowers don’t go to Prospa because its cheap. In fact borrowing from Prospa can be very expensive with annualised rates ranging from 40 per cent to 60 per cent. But the question needs to be asked “expensive compared to what?” If the bank wont lend there is no point in making a comparison to bank interest rates. And if all other options have been exhausted and the need for the money is urgent, accepting “expensive” money from Prospa is entirely a decision for the borrower.

It is important that SMEs have this option and if they prioritise speed and convenience over cost that is their prerogative. But at the same time, borrowers are entitled to be able to readily tell how much a loan will cost and whether they can get a better deal elsewhere. On this front, Prospa has some way to go.

When quoting its rates, Prospa prefers to use a “factor rate” as it believes the simplest way to describe the cost of a loan is via a payback multiple. Prospa’s prospectus offers an example based on an projected factor rate of 1.24. For an average loan of $26,000 over a term of 12 months this means that the repayments would total $32,240 of which the interest payments would be $6,240.

Whilst this does sound like a simple explanation, some people might mistakenly conclude that the annual interest rate is therefore 24 per cent ($6,240/$26,000). This would be correct if the borrower had the use of the full $26,000 for the entire term but in reality the principal is repaid progressively over the term. The only time the borrower gets access to the full amount of the principal is on day one and every day thereafter it reduces but the repayments remain the same. An alternative, more broadly accepted comparative measure of cost is the annual percentage rate or APR.

A note in the prospectus discloses Prospa’s historic APRs. At 31 December 2017, its weighted average APR was 41.3 per cent, in the year to June 2017 it was 45.2 per cent and to June 2016 it was 59 per cent. Prospa projects a slight further fall in the 2018 year. It would appear these rates exclude origination fees as well direct debit fees which all add up. An origination (establishment) fee on a $26,000 loan could be $500 which adds 1.9% to the total cost of the loan. 43 per cent of Prospa’s loans are on a daily repayment plan and with a direct debit fee of $5, this will cost $1300 over 12 months adding 5 per cent to the cost of the average loan of $26,000. APRs are a good measure but you need to know what is included or not.

Time poor and relatively unsophisticated SMEs usually don’t pay much attention to fees and charges outside of the headline periodic repayment amount but this is where they can get caught out. For example, Prospa applies significant charges and penalties if a borrower cant make a payment including a dishonour fee and a late payment fee which is calculated as a percentage of the outstanding balance for every day that the loan is late.

If a borrower wants to repay early, they can be required to pay all the interest for the unexpired period of the loan. This is not a “penalty” because a clause deep in the loan agreement stipulates “any prepayment under this clause does not reduce the amount of fees and does not reduce the interest payment unless the lender agrees”. Meanwhile the website and advertising material states “there are no additional fees for early repayment” and “once you make the final payment your balance will be $0”. All technically correct but fair and transparent?

In the prospectus, Prospa notes “changes in loan contracts or other documentation may have a materially adverse effect on the perception of distributors or borrowers of the cost of Prospa’s products relative to other financial products which may have a material adverse effect on Prospa’s business”.

One possibility that was identified was the Royal Commission recommending disclosure of broker commissions which could lead to a change to Prospa’s pricing disclosure. Prospa sources about two thirds of its loans through intermediaries such as finance brokers and aggregator networks. Fees paid by Prospa to brokers and introducers, and not disclosed to borrowers, are often around 4 per cent but can be as high as 8 per cent. Payment of undisclosed fees at this level for doing nothing more than making a referral can drive behaviour that is not in the best interest of borrowers.

In November 2016, Unfair Contracts Terms law was extended to protect small businesses from unfair terms in standard form contracts. Prospa says it has reviewed and has committed to continuing to review its loan contract as and when required but it stopped short of stating that it is currently compliant with UCT law.

The prospectus is a window into the opportunities and challenges faced not just by Prospa but other fintech lenders as well. As the first to float and as the acknowledged market leader, Propsa needs to lead by example. It is part of a group of other balance sheet fintech lenders that at the end of June are expected to agree on a code of lending practice which will outline best practice principles and provide measures for standardising transparency and disclosure, including use of standard terms, comparative pricing measures and a summary loan agreement page. This is expected to include the use of APRs and other comparative measures.

It is to be hoped that this industry led initiative will help SMEs to more easily and accurately work out how much a loan will cost and to compare this with alternative offerings. The adoption of a code of practice will be an important first step but then the work begins in earnest. As we have seen at the Royal Commission, codes are worthless unless properly applied and diligently enforced. ASIC which has come under scrutiny at the Royal Commission for going too easy on the banks, cannot afford to stand by as revelations surface about poor conduct in the largely unregulated non-bank SME lending sector.

Fintech lenders have moved beyond their start up phase and are now a genuine alternative source of debt funding for many SMEs. There is no doubt the upside for the leading player in this transformational market is very significant. Only time will tell whether Prospa which in the 2017 statutory accounts recorded revenue of $56m, EBITDA of $3.8m and NPAT of $1.2m is worth its $576m IPO price tag. There are many factors which will drive Prospa’s share price but none are more important than its genuine commitment and adherence to transparent and responsible lending practices.

Reproduced with permission.

COBA Launches New Campaign

A new campaign is encouraging Australians to ’Own Your Banking’ and to look at the benefits of customer owned banking. It includes a range of digital advertising, designed to highlight the benefits of Customer Owned Banks. We highlighted the opportunity for COBA aligned organisations in our recent post.

The Customer Owned Banking Association launched the campaign today following increased interest and demand from customers for banking they can trust.

“Own Your Banking is a direct response to our members telling us they’ve seen an uptick in customer interest and enquiries because people are shocked by stories they’ve been hearing in the Royal Commission,” COBA CEO Michael Lawrence said.

“Our model is the only alternative that can claim it is solely customer focused because 100% of profits are used to benefit customers. This is what we’re communicating through the ‘Own your Banking’ campaign.

“4 million Australians already own their banking – they are customers of mutual banks, credit unions and building societies across Australia.

“We hope ‘Own Your Banking’ will let consumers know there are plenty of alternatives in the Australian banking market that can be trusted to put them first.

“There are more than 70 mutual banks, credit unions and building societies located across Australia. We are market leaders in customer satisfaction and offer award winning home loans and low rate credit cards.

“We encourage consumers to take a look at our campaign and learn more about how to Own Your Banking.”

The Future of ATMs (And The Banks’ Social Obligations)

I discussed the future of ATMs with Neil Mitchell on 3AW following the banks’ removal of withdrawal fees last year. Now many banks are removing these devices as usage falls, but should they have a social obligation (in the light of the Royal Commission)?