Lessons for all lenders in ASIC's low doc review
A review of the lending practices of low doc lenders issued by the Australian Securities and Investments Commission last week includes a number of important findings applying to responsible lending generally, according to Gadens Lawyers."ASIC expects a fairly detailed consideration of the borrower's requirements and objectives," Gadens partner Jon Denovan said in a note to clients. Denovan said identifying a borrower's requirements and objectives sounded simple but was still a problematic area of law, four years after the responsible lending rules took effect. "Lenders need to understand the purpose of the credit and then determine whether the type, length, rate, terms, special conditions, charges and other aspects of the proposed credit match the purpose," he said.Gadens' advice, based on ASIC's low doc report, is that the following steps can be taken to improve compliance:• When relying on information from third parties, ensure that their collection procedures are robust and that inconsistencies are explored.• Create records describing what steps are taken to conduct assessments.• Be cautious of accountants' statements, especially where the relationship between borrower and accountant has only existed for a short time.• Do not rely on indexes or ratios alone to assess household living expenses. Make reasonable inquiries abut a borrower's situation.• Obtain both a consumer and commercial credit check (where available).• Incorporate buffers into calculations to adjust for potential changes to financial circumstances.• Clearly document responsible lending procedures that deal with unsatisfactory situations.