The Financial Services and Markets Act 2000 (Consumer Credit) (Miscellaneous Provisions) Order 2014

“Enforcement of agreements for ancillary credit services48A.

(1)

Section 148(1) (agreement for services of unlicensed trader)16 of the Consumer Credit Act 1974 and section 145 (types of ancillary credit business) of that Act, in so far as that section relates to section 148(1), continue to apply to a relevant agreement and for that purpose section 148 is to be treated as if—

(a)

in subsection (1)—

(i)

after “the OFT has”, there were inserted “before 1st April 2014;

(ii)

after “applies to the agreement”, there were inserted “or the FCA has given a notice under section 28A of the Financial Services and Markets Act 200017 by virtue of subsection (1A);

(b)

after subsection (1), there were inserted—

“(1A)

Sections 28A and 28B of the Financial Services and Markets Act 2000 apply to an agreement which is not enforceable by virtue of subsection (1) with the following modifications—

(a)

in section 28A, subsections (1), (2) and (3)(b) do not apply;

(b)

for section 28A(4) to (6), substitute—

“(4)

In considering whether to allow the agreement to be enforced the FCA must have regard to whether the relevant firm reasonably believed that a licence under the Consumer Credit Act 1974 was not required by the trader to enter into the agreement.”;

(c)

for section 28A(8), substitute—

“(8)

"The relevant firm” means the person who, disregarding the effect of section 148(1) of the Consumer Credit Act 1974, would be entitled to enforce the agreement.”

(2)

In paragraph (1), a “relevant agreement” means an agreement entered into before 1st April 2014 to which section 148(1) of the Consumer Credit Act 1974 applies on 31st March 2014.

Enforcement of agreements made on introductions by unlicensed credit-broker48B.

(1)

Section 149(1) (regulated agreements made on introductions by unlicensed credit broker)18 of the Consumer Credit Act 1974 continues to apply to a relevant agreement and for that purpose section 149 is to be treated as if—

(a)

in subsection (1)—

(i)

after “the OFT has”, in each place, there were inserted “before 1st April 2014;

(ii)

after “applies to the agreement”, there were inserted “or the FCA has given a notice under section 28A of the Financial Services and Markets Act 200019 by virtue of subsection (1A);

(b)

after subsection (1), there were inserted—

“(1A)

Sections 28A and 28B of the Financial Services and Markets Act 2000 apply to an agreement which is not enforceable by virtue of subsection (1) with the following modifications—

(a)

in section 28A, subsections (1), (2) and (3)(b) do not apply;

(b)

for section 28A(4) to (6), substitute—

“(4)

In considering whether to allow the agreement to be enforced the FCA must have regard to whether the relevant firm reasonably believed that a licence under the Consumer Credit Act 1974 was not required by the credit-broker when introducing the debtor or hirer to the creditor or owner.”;

(c)

for section 28A(8), substitute—

“(8)

“The relevant firm” means the person who, disregarding the effect of section 149(1) of the Consumer Credit Act 1974, would be entitled to enforce the agreement.”

(2)

In paragraph (1), a “relevant agreement” means an agreement entered into before 1st April 2014 to which section 149(1) of the Consumer Credit Act 1974 applies on 31st March 2014.”.

“Application of article 72B of the Regulated Activities Order to persons with an interim permission59A.

(1)

For the purposes of the definition of “provider” in article 72B (activities carried on by a provider of relevant goods or services) of the Regulated Activities Order21, any regulated activity of the kind specified by a provision of the Regulated Activities Order listed in paragraph (2) for which a person has interim permission are to be ignored.

(2)

The provisions are—

(a)

article 36A (credit broking);

(b)

article 36H (operating an electronic system in relation to lending);

(c)

article 39D (debt adjusting);

(d)

article 39E (debt-counselling);

(e)

article 39F (debt-collecting);

(f)

article 39G (debt administration);

(g)

article 60B (regulated credit agreements);

(h)

article 60N (regulated consumer hire agreements);

(i)

article 89A (providing credit information services);

(j)

article 89B (providing credit references);

(k)

article 64 (agreeing to carry on specified kinds of activity) in so far as it relates to an activity of the kind specified by a provision listed in sub-paragraphs (a) to (j).”.