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New Zealand Ad Hoc Government Discussion Papers |
Last Updated: 18 April 2020
CONSUMER CREDIT LAW REVIEW
PART 3: TRANSPARENCY IN CONSUMER CREDIT: INTEREST, FEES AND
DISCLOSURE
April 2000
CONSUMER CREDIT LAW REVIEW
PART 3: TRANSPARENCY IN CONSUMER CREDIT: INTEREST, FEES AND
DISCLOSURE
April 2000
ISBN 0-478-23472-4
33 Bowen Street, PO Box 1473
Wellington, New Zealand
Phone: 64 (4) 474-2750
Fax: 64 (4) 473-9400
Email: mcainfo@moc.govt.nz
CONTENTS
PREFACE
The
Minister of Consumer Affairs announced a Consumer Credit Law Review on 1 July
1999, on which date a public consultation document
entitled Setting the
Scene was released.
In total, five public consultation documents
will be released over the course of the review. This document – which
deals with
transparency in consumer credit – along with the application
document lead into the second stage of the review. The final two
documents will
deal with redress and enforcement, and other issues (including electronic
commerce, insurance and overindebtedness).
They are due to be released mid-year.
The transparency document covers some of the most technically complex
issues likely to arise in the review. While the Ministry has
attempted to make
the document as readable as possible it needs to be appreciated that much of the
discussion is based on intricate
legal and financial concepts. Where possible,
the technical detail (including financial mathematics) has been placed in
appendices.
We have also provided a comprehensive glossary. If you have any
difficulties in working with this Transparency document, you are welcome
to contact the Ministry's credit team.
Relationship with Application document
The
application document has been released simultaneously with this document. Thus,
the transparency document does not discuss which
classes of transaction the
various identified options would apply to – that is a central concern of
the application document.
Importantly, the discussion in this
document relates to consumer credit contracts and therefore, the
proposals and options are not concerned with commercial credit. For example, the
Ministry does
not support a legislated right to early repayment of a credit
contract for commercial debtors, although this is proposed for consumer
credit
contracts. The application document discusses in detail the intrinsic
differences between consumer and commercial credit and
the arguments for
separate regulation.
Acknowledgements
The Ministry of Consumer Affairs would like to acknowledge the considerable assistance received from Rick Bowes, Counsel with the Alberta Law Reform Institute, Edmonton, Canada. As well as commenting on an earlier draft of this document, Rick provided the Ministry with policy memorandums he wrote during an extensive project on consumer credit undertaken by the Institute. Some of the analysis in this document is based on his work. The Ministry would also like to thank Warren Sloan for assisting with the financial mathematics. The responsibility for this report, however, lies solely with the Ministry.
EXECUTIVE SUMMARY
Transparency
is important in consumer credit because these transactions are inherently
complex. Transparency relies on disclosure
by lender to consumer of the price
and terms of a credit product – however, the concept goes further: it also
concerns the
timing of the receipt of information; the content and format of
that information; and its comparability with (competing) products
offered by
other lenders. An effective transparency regime assists consumers to obtain
information that they can use to maximise
their welfare, and promotes efficient
markets.
Problems in achieving transparency
An analysis of transparency in the New Zealand consumer credit market leads to the assertion that consumer protection relies on more than disclosure alone. The most important limitations on a disclosure regime are:
The cost of credit
In return
for the use of credit, borrowers pay interest and fees. Interest was
traditionally calculated using the “flat rate”
method as a
proportion of the principal outstanding at the commencement of the loan. Some
lenders still use this method for calculating
fixed interest, fixed term loans.
However, most lenders now use an “accrued” interest method, whereby
interest is calculated
on the reducing balance of the loan – most
commonly, on the outstanding daily balance. This method is advantageous to both
lenders and consumers; notably it improves transparency. Interest is never
calculated in advance.
Disclosure of the cost of credit in New Zealand’s consumer credit law
The key statute requiring disclosure by lenders to borrowers or prospective borrowers is the Credit Contracts Act 1981. The most important disclosures for fixed credit products are the:
However, these items are not required to be disclosed for
revolving credit products.
The annual finance rate provides a standardised measure of the cost of credit
that includes interest and other charges. It accounts
for the timing and amount
of all advances and repayments. Before annual finance rate disclosure was
required, lenders used a variety
of methods to disclose interest charges. The
annual finance rate enables loans to be objectively ranked by cost on a
“dollar
outstanding per year” basis. It may also serve a warning
function by alerting consumers when the cost of credit is unexpectedly
high.
A critique of disclosure requirements
Overall, the Ministry believes the finance rate concept has significant shortcomings in practice. A number of problems can be identified:
Generally, the current legislative
framework for disclosure has not prevented lenders from using obscurely drafted,
standard-form
contracts.
Disclosure requirements in overseas
jurisdictions
The US, Canada and the UK all require the disclosure of the
annual finance rate (called an annual percentage rate, “APR”)
by
lenders to consumers, although variations exist. Canadian law was drafted most
recently and provides a contemporary example. Australian
law has now abandoned
the finance rate approach in favour of comprehensive and full disclosure. A
review by the Ministerial Council
of Consumer Affairs concluded that some
aspects of Australian legislation are problematic. Two notable deficiencies
identified are
that it does not overcome the “timing problem” and it
requires disclosure of too much information, leading to “overload”.
Nevertheless, other provisions may provide a useful guide for reform in New
Zealand.
Transparency issues with the early repayment of loans
Borrowers have only a limited right to early repayment in New Zealand. In most cases this right will depend on the contract between borrower and lender. Charges that borrowers may face include:
Options for reform
The
Ministry believes that the shortcomings of the Credit Contracts and Hire
Purchase Acts are such that options for reform should
be considered.
The
Ministry has identified two alternatives for reform of the initial disclosure
regime.
1. Reform the finance rate in the Credit Contracts
Act
Options to improve the accuracy of the current regime include:
2. A synthesised approach
The central feature of this
approach is that it largely abandons the goal of facilitating “comparison
shopping” based
on direct creditor to borrower disclosure. Rather, it
focuses on:
In any approach, there will be issues of timing and
presentation of contractual material. Options for dealing with these issues
are:
Timing:
Format and presentation of contract documentation:
Finally, the concept of a “centralised”
third party disclosure regime is raised. This would involve an agency collecting
cost of credit information from lenders and publishing it centrally, so that
consumers could compare prices. Such a model would overcome
many of the problems
that legislation has failed to overcome, including the timing problem.
Potentially, it would allow legislation
to be simplified. However, it may not
work for all market segments. Furthermore, it is an untested model, and would
have to be established,
administered, marketed and funded.
CALL FOR SUBMISSIONS
The
Ministry encourages written submissions from interested parties on the content
of this document. The purpose of the submissions
will be to inform the Ministry
as it proceeds with the review of consumer credit law. Ultimately, the
submissions will inform the
government on any decisions it chooses to take with
respect to the reform of consumer credit law.
Questions for submitters
The
Ministry of Consumer Affairs would like to receive comment on all aspects of
this document. Specific questions are asked in Chapter
9, which discusses
possible options for reforms. The key issues that the Ministry is considering
are:
Specific questions are listed in Chapter 9.
Final date for submissions and contact details
Final
date for receipt of submissions is Friday, 14 July, 2000.
Comments and
submissions should be addressed to:
Consumer Credit Law Review Team
Policy
Unit
Ministry of Consumer Affairs
PO Box 1473
WELLINGTON
Contact
details:
Rob Bowie 64 4 474-2927 rob.bowie@moc.govt.nz
Bob Hillier 64 4
474-2944 bob.hillier@moc.govt.nz
Nick McBride 64 4
474-2818 nick.mcbride@moc.govt.nz
Fax: 64 4 473-9400
OFFICIAL INFORMATION ACT 1982
In providing your submission, please advise us if you have any objections to the release of your submission. If this is the case, please advise us of the parts of your submission that you would wish withheld, and the grounds for withholding. In preparing and releasing any summary, and in considering any formal Official Information Act requests that might be received, the Ministry will carefully review any representations that you make in this regard.
PRIVACY ACT 1993
Any
personal information that you supply to the Ministry in the course of making a
submission will be used by the Ministry in conjunction
with consideration of
matters covered by this discussion paper only.
When preparing any summary
of submissions for public circulation, it is the Ministry’s normal
practice to set out the names
of parties making submissions. Your name will be
included in any such summary unless you inform the Ministry that you do not wish
your name to be included. In order to indicate your wishes, or to view personal
information held about you in respect of the matters
covered by this discussion
paper, or to request correction of that information, please contact the Ministry
of Consumer Affairs,
ph (04) 474 2750.
PART ONE
1. TRANSPARENCY: KEY PRINCIPLES AND ISSUES
Consumer
credit transactions are inherently complex. This complexity often makes it
difficult to clearly inform consumers about the
terms and prices of consumer
credit products.
Transparency – the subject of this
discussion paper – is the process of disclosing accurately and fairly to
consumers the price and
key terms of a credit deal. Transparency, however, is
broader than disclosure alone. The timing, content, format, and presentation
of
information all influence how useful disclosure will be to consumers. When there
are a number of competing products, consumers
may be faced with significant
search costs in deciding which credit deal is best for them.
1.1 Why transparency matters
Transparency provides benefits for both borrowers and lenders:
Transparency
will not eliminate all the difficulties faced by consumers in credit deals, but
it will help make them better informed
and more confident in their
dealings.
1.2 Principles of transparency in consumer credit
The
following principles are central to any discussion of
transparency:
Accuracy: the information provided should allow
consumers to draw clear conclusions about the cost of credit.
Comparability: information provided by different lenders should
be comparable so that consumers can make meaningful choices between competing
offers.
Presentational clarity: as far as possible, information
should be presented clearly and in a consumer-friendly way.
Conciseness: concise documents are more likely to be read and
understood – and help keep search costs down for
consumers.
Timing: consumers should receive all the essential
information they need before becoming irreversibly committed to a credit deal.
There is, however, a tension between these principles. To take one
example, accuracy implies comprehensiveness – and this may
conflict with
the principles of conciseness and timing. Some of these principles have also
proved extremely difficult for legislators
to achieve in practice. Combining
satisfactorily the goals of appropriate timing and comparability has proved to
be a universal challenge
for consumer credit law.
This discussion paper
provides detailed discussion on these types of difficulties and the trade-offs
that are involved. Depending
on the principles a transparency regime may
emphasise, different types of options come into play.
1.3 Transparency in practice – the key issues in this document
The key areas of consumer credit law that involve transparency are:
The above issues are all
interrelated and need to be considered as part of a unified approach to
transparency that seeks to meet the
five principles outlined in section 1.2.
The more specific issues that are discussed in the following chapters
are:
1.4 Structure of the discussion paper
This
discussion paper evaluates New Zealand’s cost of credit and disclosure
regime and compares it with other jurisdictions.
It falls into three main parts.
Part one (Chapters 1 to 5) defines and discusses the basic concepts
involved in transparency. An important conclusion that emerges
from this
discussion is that: consumer protection in credit deals relies on more than
direct lender to borrower disclosure alone. The remaining parts of the
discussion paper take account of this conclusion in their analysis of the
regulation of interest and other
charges, cooling-off periods and early
repayment. It also leads the Ministry to raise the possibility of new approaches
to transparency
and disclosure, such as through a centralised
mechanism.
Part two (Chapters 6 to 8) critically analyses New
Zealand’s current disclosure regime; it also looks at developments in
other
countries with similar systems of consumer credit law.
Part three
(Chapter 9) looks at options for reform. These take two main forms: to reform
the existing Credit Contracts Act in various
ways; or to adopt elements of the
recent Australian Consumer Credit Code and adopt a different approach to
transparency.
2. PROBLEMS IN ACHIEVING TRANSPARENCY IN CONSUMER CREDIT
Consumer
credit products range from hire purchase and relatively straightforward
fixed-credit loans, to credit cards and sophisticated
mortgage products. Because
of the variety and complexity of today’s credit products,
credit-purchasing decisions are vastly
more complicated than was foreseen by the
drafters of New Zealand’s current consumer credit
law.[1]
As well, limited
skills in literacy and numeracy result in many consumers not being able to
understand even comparatively simple financial
documents.
These factors
present a major challenge in achieving transparency in consumer credit.
2.1 The complexity of modern credit products
The
complex array of credit products now available was not anticipated by the
legislators of two decades ago. The Credit Contracts
Act was passed in 1981
– based on a report completed in 1977. The concepts behind the Act’s
“finance rate”
and the “total cost of credit” were
largely adapted from overseas statutes, which were themselves developed and
passed
in the 1960s and 1970s.
At that time the government also actively
controlled the provision of credit as part of microeconomic
management.[2] “Fixed”
credit was the norm: loans were for fixed amounts with fixed repayment
schedules. Revolving credit contracts
were mainly used by commercial borrowers
– and credit cards were not widely used until the early 1980s.
Today, fixed credit is in decline and revolving credit products are
rapidly increasing, largely through the increased computerisation
of accounting
systems and automation of accounts. These modern credit products have various
features – including flexible credit,
variable interest rates and linkage
to loyalty schemes.
2.1.1 Flexible credit
“Flexible
credit” is a broad category of loans and credit arrangements without
regular, fixed payments of interest and
principal being set at the start of the
contract. This includes overdrafts, redraw facilities, credit cards, and other
similar arrangements.
These are “flexible” because the borrower can
choose when and how much to borrow (subject to any credit limit), and when
and
how much to repay (subject to any minimum required repayment). They are called
“revolving credit” because the balance
that is not paid off
“revolves” to the next billing period.
Credit
cards
Credit cards are the most common type of flexible-credit
arrangement and have increased in sophistication and complexity. Although
many
credit cards may have similar interest rates and “grace” periods,
variations in terms and conditions can affect
the cost of using different cards.
For example, the cost of using each card may differ because
of:[3]
Recent innovations involve tiered interest rate
structures. For instance, one mainstream credit card charges reduced interest
rates
as the loan’s outstanding balance increases. This way, the more you
borrow, the lower your overall interest rate. Other revolving
credit contracts
also provide tiered interest rates, but with the different interest rates
applying to individual advances, not to
the outstanding balance of the loan.
Flexible mortgages
Flexible mortgages are home loans with
flexible credit features. The home loan and flexible credit facility can be
combined in different
ways:
Other variations include mortgage-offset arrangements where
interest on a saving deposit can be offset against mortgage payments.
2.1.2 Variable interest rates and “honeymoon” periods
Variable
interest rates existed when the Credit Contracts Act was passed in 1981.
However, recent innovations include products that
combine loans with fixed and
variable rates in a single package. Sometimes the consumer can select the term
for which interest is
fixed; other times it is fixed by the
lender.
“Honeymoon periods” are a relatively recent marketing
tool in New Zealand. The lender – usually a mortgage lender
– offers
a discounted fixed interest rate for an initial period of the loan (usually up
to one year). Once the low-start period
is complete, the loan reverts to the
lender’s current variable interest rate.
2.1.3 Loyalty schemes
A recent development has been the partnership between credit card issuers and other institutions to offer loyalty schemes. These are referred to as co-branded and affinity credit cards. Examples are credit cards that enable the borrower to collect “Fly Buys.” points or air points. The points can be redeemed for a reward provided by the loyalty company. Most credit cards now have a loyalty programme attached and the loyalty concept has been extended to home finance. One trading bank offers a special home loan, whereby air points are earned on the outstanding balance of the borrower’s mortgage.
Loyalty programmes add a significant factor to be weighed up by consumers when comparison shopping, further complicating value-for-money comparisons.
2.2 Literacy requirements
The
Ministry’s first discussion paper Part I: Setting the Scene
(released in June 1999) noted that a complicating factor for any disclosure
regime is the limited capacity of many consumers to understand
even the most
simple of credit contracts.
Part I: Setting the Scene cited the
1996 International Adult Literacy Survey, which found around 45 percent of New
Zealand adults were functionally illiterate:
approximately 500,000 have minimal
or nil reading capability, while a further 750,000 cannot comprehend an everyday
document.[4] The documents on which
the survey was based are likely to be less complex than a typical credit
contract. The survey also found
that the majority of Maori and Pacific Islands
people, and those from other ethnic minority groups, are functioning below the
level
of literacy required to meet the demands of everyday life. There do not
appear to be any studies of numeracy in New Zealand, but
it is likely that
similar conclusions would result.
So any disclosure regime is posed with
a major challenge in providing information ordinary consumers can understand.
This suggests
adequate consumer protection may have to rely on more than just
credit contract disclosure. The Ministry’s proposals in Chapter
9 outline
some ways that disclosure provisions can be designed in accordance with
consumers’ literacy levels.
3. THE COST OF CREDIT
Transparency
is concerned with making the cost of credit clear to consumers – that is,
what is the total cost of credit (including
both interest and fees) compared
with paying cash for a purchase. Before looking at how this can be achieved,
what is meant by the
cost of credit and how it is calculated needs to be
clarified.
3.1 Distinction between interest charges and fees
Lenders charge consumers for the use of credit in two ways:
Together,
these two elements make up the cost of credit.
Interest: interest
is the extra charge paid by borrowers for the use of credit. It reflects the
return to the lender from offering the credit.
The Credit Contracts Act defines
interest (the interest rate) as any part of the total cost of credit that
results from multiplying
by a percentage the amount of credit
provided.
Fees: these refer to any other charges a borrower is
required to pay in obtaining credit.
Credit charges (which consist of
interest and fees) recover the lender’s costs plus any profit. There is,
however, a difference
in function between fees and interest in a lender’s
overall pricing structure for a loan (see Appendix One for more details).
The cost of administering a loan is normally heaviest at the start, when
the loan is being set up and documented. Therefore, lenders
commonly have an
“up-front” fee, such as an application or booking fee. Other lenders
may require that the first month
of interest charges be paid in advance.
Credit law often affects how lenders structure their loans and recover their costs. For instance, it may allow or restrict various fees, set down a method for calculating interest, require certain fees to be included in the calculated annual finance rate and/or give consumers a right of early repayment. (See Appendix One for more detail on these issues.)
3.2 Methods of interest calculation[5]
The most common methods of charging interest on credit are the “flat-rate” (or add-on) method and the “accrued interest” method.
3.2.1 The flat rate (add-on) method
Under
the “flat-rate” method of calculating interest, the amount of the
total interest is calculated on the original principal
and is added to the loan
amount (see Example 1).
Example 1
A contract has an annual flat rate of 20%.
Therefore, total interest on a $1000 loan to be repaid monthly over two years
comes to
$400. That is:
$1000 x 20% x 2 years
The total interest is “added on” to the balance, which now
comes to $1400. This is then divided by the number of payments
to be made (24),
to arrive at a monthly instalment of $58.33.
The actual interest
rate is nearly twice the indicated rate of 20% because, on average, only about
half of the principal is outstanding over
the term of the loan. This means that
the annual interest rate on the reducing balance is 34.6%. For this reason, the
Credit Contracts
Act requires that lenders using the flat rate method also
disclose the annual finance rate – which represents the cost of credit
in
relation to the diminishing balance, not the original loan.
Consumer
finance lenders used the flat-rate method before computerisation became
widespread. It is still used by some lenders for
calculating interest on
fixed-credit loans, particularly by cash-loan companies – many which
continue to quote the flat rate
on a credit contract.
3.2.2 The accrued interest method
The “accrued-interest” method charges interest on a periodic basis (usually monthly). The interest rate is the annual rate divided by the relevant period. Each repayment is applied first to the interest, with the rest of the payment being subtracted from the principal.
Example 2
Lender X offers a $1000.00 loan at an annual interest
rate of 16.95%. The monthly rate is which is 1.412%. This rate is applied to
the balance each month.
The term of the loan is for 6 months and
instalments are $175.00 per month. The result is a payment schedule that looks
like this:
Payment Interest Payment
Principal Balance
Number amount reduction outstanding
0 1000.00
1 14.12 175.00 160.88 839.12
2 11.85 175.00 163.15 675.97
3 9.54 175.00 165.46 510.51
4 7.21 175.00 167.79 342.72
5 4.84 175.00 170.16 172.56
6 2.44 175.00 172.56 0.00
0.00
For
simplicity, this example assumes each month is of equal length, as permitted by
the Credit Contracts Act. In practice, many lenders
allow for the exact number
of days in each month.
(To see how this example has been calculated
refer to Appendix Two.)
The Hire Purchase Act 1971 refers to this
interest method (as “simple” interest) and assumes interest is
calculated on
the amount still outstanding from month to month. Accrued interest
is now most commonly calculated on a daily basis – the annual
interest
rate divided by 365. Interest charges are usually then charged to the borrower
monthly.
The accrued-interest method is preferred by most lenders as it
is more flexible and can easily deal with early repayments, extra payments,
missed or late payments as well as irregular payment periods and revolving
credit arrangements.
From the point of view of transparency, it is also
better for consumers as it:
4. DISCLOSURE OF THE COST OF CREDIT IN NEW ZEALAND CONSUMER CREDIT LAW
4.1 Legal requirements
The
last chapter looked at the costs – interest charges and fees – that
consumers must pay in connection with a credit
contract. This chapter describes
how lenders are required to disclose these costs to consumers.
The
Credit Contracts Act contains the most important provisions for disclosing
information on the cost of credit. The focus in this
discussion paper is on that
Act.
The main aims of the disclosure provisions of the Credit Contracts Act were to provide information in such a form that consumers could shop around for credit.[6] Borrowers should have all the terms of the credit contract disclosed to them before they became completely committed to a loan deal. The disclosure information should be made available by lenders on a uniform basis to prevent deception and encourage competition.
To achieve these aims, the Credit Contracts Act was passed
with the following disclosure requirements for fixed and revolving
credit.
4.1.1 Fixed credit
The following information must be disclosed:
The “total cost of credit” is
defined in section 5 of the Act. It includes interest and other charges, such as
booking
fees and application fees: all these separate costs must be disclosed as
one figure.
Each component of the total cost of credit must be disclosed. But if the credit contract is secured by a mortgage, the total interest charges over the life of the loan do not have to be shown. This is because mortgages are often for a long duration and it is likely that the interest rate will change during the term of the loan. It is therefore not feasible to accurately calculate the total cost of interest.
The key item that must be disclosed is the
“annual finance rate”. The annual finance rate expresses the total
cost of
credit as an annual percentage rate of the amount of credit still
outstanding on the loan. The rules for its calculation are in the
First Schedule
of the Act. The annual finance rate includes both interest charges and other
fees included in the cost of credit.
For contracts with variable interest rates,
the finance rate is calculated according to the interest rate at the time the
calculation
is made.
4.1.2 Revolving credit
The
requirements for initial disclosure of revolving credit are the same as for
fixed credit, except that there is no requirement
to disclose the annual finance
rate or the total cost of credit. This is because there is no practical way of
making these calculations,
since the interest rate may vary over the term of the
loan and there is no set schedule of advances and repayments.
4.1.3 Other disclosure provisions
There
are other provisions that relate to request disclosure, guarantee disclosure,
modification disclosure and continuing disclosure
(the latter for revolving
credit only). In this discussion paper the main emphasis is on initial
disclosure – and so these
other forms of disclosure are not discussed in
any detailed way. The main issue in credit disclosure is providing consumers
with
adequate information about a loan before they sign up.
4.2 Timing of disclosure
The
timing of initial disclosure must take place either before the contract
is made, or within 15 days after the contract is made. (Similar provisions
apply
to modification disclosure.) Once initial disclosure has been made, the
borrower is given three working days to cancel the contract if they wish.
Continuing disclosure applies to revolving credit contracts. Its
timing depends on the length of the relevant “billing period” during
which credit has been provided. If the billing period is 3 months or less,
disclosure must be made within 20 working days after the
end of the billing
period. For periods over 3 months, disclosure has to be made within 45 working
days.
The Credit Contracts Act requires the following information as part of continuing disclosure:
5. ROLE OF THE ANNUAL FINANCE RATE IN DISCLOSURE
The
intention of the Credit Contracts Act was to enable loans to be compared on the
same basis. The major tool in the Act for doing
this is the annual finance rate.
This chapter describes how it attempts to promote transparency in consumer
credit. (For technical
details about the annual finance rate see Appendix
Three.)
5.1 The annual finance rate as a standardised expression of the cost of credit
Before
the Credit Contracts Act was passed, when lenders were not required to disclose
the annual finance rate on credit contracts,
there was a lack of uniformity in
the methods used to indicate the price a borrower had to pay for credit. This
made meaningful assessments
of the cost of credit difficult for consumers
– for instance, a loan with a flat interest rate always appears to have a
lower
rate than loans that use other interest methods. This problem is
compounded if lenders are free to charge different fees (see Example
3).
Example 3
Which of A or B is the more expensive loan?
The finance rates
of each loan are:
The annual finance rate requires lenders to quote the cost of credit on a more uniform basis.
NB
It is important to note in this context
that the annual finance rate is only a measure. Lenders are not required
to apply the annual finance rate to calculate the amount of instalments
or the outstanding balance on a loan. The annual finance rate assumes
a
distribution of interest and non-interest charges over the term of the loan,
based on the formula in the Credit Contracts Act,
but it does not in fact
distribute those charges over the loan (such as in the event of early
repayment). The finance rate can be
used for this purpose, but a lender could
also use the contractual interest rate, the Rule of 78 or some other method.
5.2 Annual finance rates as an aid to comparison-shopping
The annual finance rate is intended to assist consumers in comparison-shopping by giving an indication of the cost of credit that takes into account the amount and timing of all advances and payments under a loan, including interest and other charges. It has the following features:
Example 4 (following page) shows how the annual
finance rate can be used as an objective means of comparison.
Example 4
A consumer is considering various finance options before
purchasing a car. Information about the amount of the periodic repayments,
the
total amount of the repayments, and the total dollar cost of borrowing for each
of two or more alternative loan options will
not be a reliable indicator of
their relative cost if the principal or duration of the loans is different.
Suppose the consumer was
given the following information about different loans
offered by a lender . Each loan has an interest rate of 12%; an administration
fee of $100 – added to the principal – and monthly repayments:
LOAN 1 LOAN 2 LOAN 3 LOAN 4
Amount Advanced ($) 10,000.00 10,000.00 5,000.00 5,000.00
Payment Amount ($) 897.37 335.46 453.13 169.39
Term (Years) 1 3 1 3
Total Repayments ($) 10,768.47 12,076.72 5,437.55 6,098.15
Total Cost of Credit ($) 768.47 2,076.72 437.55 1,098.15
Annual finance rate ? ? ? ?
The available information about the
different loans is not directly comparable because the loans are for different
dollar amounts
or lengths of time. The available information does not reveal the
relative cost of Loan 3 (one year) versus Loan 4 (three years),
taking into
account the time value of money.
The total dollar cost of borrowing for
each loan is known, but this does not tell the consumer how much each loan costs
“per
dollar outstanding per year”.
The interest rate does
not tell the whole story either, because it does not account for the
administration fee. Similarly, if the
consumer wants to compare the cost of a
loan for $5,000 with a loan for $10,000, the available information does not
allow a direct
comparison of Loan 1 or 2 with Loan 3 or 4.
However, with
important caveats (discussed in section 6.2), the annual finance rate states the
cost on a comparable basis and factors
in the administration fee. When the
annual finance rate for the four loans is disclosed, they can be arranged in the
following order:
Loan 2 ($10,000 - 3 years) 12.7%
Loan 4 ($5,000 - 3
years) 13.4%
Loan 1 ($10,000 - 1 year) 13.9%
Loan 3 ($5,000 - 1
year) 15.8%
The annual finance rate has provided an objective measure of
the cost of the different loans.
5.3 Annual finance rate as a warning
The
annual finance rate may serve another useful function: it can act as a warning,
or as a “red flag”, when the cost
of credit is higher than the
consumer is prepared to pay.[7] The
annual finance rate may alert consumers to be cautious. For example, a lender
may offer a contract with a low interest rate,
but with high up-front fees. If
consumers look at the interest rate alone, they may not fully appreciate the
effect of these fees
on the total cost of the loan. But when these fees are
included in the total cost of credit and disclosed as part of the annual finance
rate, the figure will be considerably higher than the interest rate and beyond
what the consumer is prepared to pay. The annual finance
rate may then signal a
warning to the consumer.
PART TWO
6. A CRITIQUE OF DISCLOSURE REQUIREMENTS
The
previous two chapters examined some of the advantages of the Credit Contracts
Act’s disclosure regime – in particular,
the benefits to consumers
of disclosing the annual finance rate. In this chapter, a number of arguments
are evaluated that question
the usefulness of annual finance rates to consumers.
The main areas of concern about annual finance rates are that:
Also discussed in this chapter are some other criticisms of the
current disclosure regime – in particular, the obscure drafting
of credit
contracts.
6.1 The types of charges accounted for by the annual finance rate
A fundamental question is what charges should be included in the finance rate? In answering this question, two important criticisms of the annual finance rate as drafted in the Credit Contracts Act are highlighted:
The position in the Credit Contracts
Act
The Credit Contracts Act defines the charges that must be
excluded in the finance rate on the basis that certain charges do not form
part
of the total cost of credit. These charges are listed in section 3 (3):
(a) Incidental services provided pursuant to the contract, and legal services relating to the contract, shall not be included as money's worth provided, or agreed to be provided, under the contract; and
(b) The following amounts shall not be included as part of the sum or sums of money promised to be paid in the future:
(i) Any reasonable amount payable for incidental services to the promisor, or for incidental services to any property sold or bailed under the contract or over which security is taken by or pursuant to the contract:
(ii) Any reasonable amount payable as a result of a default under the contract by the promisor:
(iii) Any reasonable amount payable as a result of damage to property while in the possession of the promisor:
(iv) Any reasonable amount payable for surveys, inspections, or valuations of property required for the purposes of the contract:
(v) Any reasonable amount payable for legal services relating to the contract (other than for the collection of money):
(vi) Any amount required to be paid by virtue of any enactment:
(vii) In the case of a contract of bailment where the bailee has the right to cancel the bailment, any amounts that cease to be payable under the contract upon the bailee exercising that right:
(viii) Any amount of a kind specified in regulations made under section
47(1)(a) of this Act.
The most important category of charge not included
in the finance rate are “incidental services”. These are defined in
section 2:
"Incidental services", in relation to a contract, means benefits (not being benefits that consist of the provision of credit) such as, in the case of a contract providing for the security of money or money's worth by a mortgage, benefits that consist of the provision, by the mortgagee or any other person, of -
(a) Mortgage repayment insurance paid for by the mortgagor (not being insurance under which the insurer has recourse against the mortgagor):
(b) Life insurance:
(c) Fire insurance:
(d) Insurance allowed or required under section 39 of the Unit Titles Act 1972:
(e) Services that would be undertaken for the protection, preservation, or
maintenance of the property subject to the mortgage by
a prudent owner of that
property.
Incidental services are broadly “benefits” provided to the
consumer as part of the credit contract. Insurance is given
as an example only.
“Benefit” means more than the ability to obtain the credit on offer
(i.e. a charge does not provide
a benefit just because paying the charge enables
the borrower to obtain the loan).
6.1.1 Is the current annual finance rate a useful tool for consumers?
One way of assessing the usefulness of the current annual finance rate, as a tool for comparison shopping, is to see whether it includes all the charges a consumer needs to be aware so he or she can choose the least expensive credit deal.
The following 2-step test can help in making this assessment:
Step 1: would the charge have been incurred even if the consumer was paying cash?
If the answer to this first question is “no”:
Step 2: would the consumer almost certainly pay exactly the same amount for this service whatever type of credit they obtained?
If the first question is answered “yes”, the charge
is not really a cost of obtaining credit. It is a cost of obtaining
some other
product, for example, freight costs. If the second question is answered yes, the
charge is an unavoidable cost of credit
and therefore “cancels out”
across all deals.[10] Answering
“yes” to either question suggests that the charge can be
excluded from the annual finance rate without reducing its value to the
consumer.
But if the answer to both questions is “no”,
there is a strong case for accounting for the charge in the finance rate.
In the following section, the above test is used to determine whether
the Credit Contract’s Act annual finance rate reflects
the cost of
borrowing in a way that is useful to consumers. Eight common credit charges are
examined:
Interest
Interest charges are always included in the
annual finance rate – and this is appropriate as these charges are always
part of
a credit deal and do not apply to cash purchases.
General non-interest charges: booking fees, application fees, administrative fees, service fees etc.
These types of fees are lump-sum
charges that do not necessarily relate to a specific expense incurred by a
lender in setting up a
loan. Since these charges affect the cost of the loan to
the consumer, they should be included in the annual finance rate. They meet
the
two steps of the “test”.
In most cases, under the Credit
Contracts Act, such charges are likely to be included in the annual finance
rate. (However, application
or annual fees on charge cards are considered to be
incidental
services.[11])
Charges for
setting up a loan that are paid to a third party
These types of charges
relate to services provided by a third party in setting up the loan.
Finder’s fees are an example. It
should make no difference whether the
borrower pays the charge directly to the third party or is paid by the lender
and then collected
from the borrower. In either case, the charge affects the
cost of the loan to the borrower (and will vary between loans) and so meets
the
criteria of the two-step “test”.
Judges, however, have come
to different decisions on this point in New
Zealand,[12] making the position of
these fees under the Credit Contracts Act unclear.
Brokerage
fees
A brokerage fee affects the cost of a loan to the borrower,
especially since these fees can be for sizeable amounts. A finance rate
that did
not account for a substantial brokerage fee would not be an accurate indication
of the overall cost of the loan.
The Credit Contracts Act makes no
reference to brokerage fees and market practice appears to exclude them from the
finance rate, possibly
because brokerage services are seen as a benefit to the
borrower. However, the Ministry of Consumer Affairs would argue that the
only
benefit of paying a brokerage fees is that it enables the consumer to obtain
credit. In this sense a brokerage fee is no more
of a benefit than an
application fee.
Official or statutory fees
Official fees are
paid to public bodies for carrying out some service in connection with a loan
– usually searching a public
registry or registering a security. Under the
Credit Contracts Act, official fees are excluded from the charges that must be
included
in the annual finance rate.
One possible reason for excluding
official fees from the annual finance rate is that they are unavoidable and
neutral between borrowers.
For example, if a borrower will have to pay the
same $25 charge for an official fee no matter who they get a loan from,
accounting for that charge in the annual finance rate will not
help in choosing
between lenders. The effect of the fees is cancelled out.
Borrowers,
however, may have a choice between a loan that will involve an official fee and
a loan that will not. For example, a lender
may make a special offer to pay the
official fee. Or another lender may not require security (and so there is no
registration fee),
but instead charge a higher interest rate. In either case,
including the official fee in the annual finance rate will make it a more
accurate measure of the relative cost of loans.
Lenders also do not
charge uniform amounts for actions such as registering a security. On the
two-step “test”, therefore,
official fees should be included in the
annual finance rate.
Professional fees
Professional fees, such
as legal fees, valuation fees and surveyors’ fees are more likely to be a
feature of mortgage loans
than of other consumer loans. These fees are excluded
from the annual finance rate under the Credit Contracts Act.
The
arguments here are much the same as for official fees. If payment of these
charges is an inevitable expense of getting a loan,
including them in the
finance rate will not make the finance rate any more useful as a means of
assessing the relative cost of different
loans.
But, again, there could
easily be situations in which the cost of the professional fees from one lender
will not be the same as those
from another lender. If the professional fees for
the two loans are significantly different, including them in the annual finance
rate gives a more accurate measure of the relative cost of the
loans.
Practical considerations, however, may make it difficult to
include information about professional fees in the annual finance rate.
For
instance, two lenders may require a property valuation. Lender A hires and pays
for a valuer and then adds the cost to the amount
outstanding on the loan. This
lender always uses the same valuer, knows how much the valuation will cost, and
can readily include
that charge as part of the annual finance rate. Lender B
requires the borrower to provide a valuation at the borrower’s own
expense, using any qualified valuer. For this lender to include the valuation
fee in the annual finance rate, they would either have
to find out the valuation
fee from the borrower or make an estimate.
Optional
services
Consumers applying for credit are often offered a variety of
optional services (or products). Insurance products are the most common
optional
service – but many other services or products can be offered as part of a
loan agreement, including extended warranties.
There is no reason to
include these services in the annual finance rate, if the charge really
does relate to a valuable optional service provided to the
borrower.[13]
Default insurance
While insurance that benefits the
borrower should not be included in the annual finance rate, “default
insurance” should
be. This type of insurance protects the lender against
the risk of default by the borrower. Borrowers only “benefit”
from
such insurance in that it allows them to get the loan. Default insurance meets
the criteria of the two-step “test”
for inclusion in the annual
finance rate. The Credit Contracts Act excludes such insurance from the
definition of incidental services,
and so the premium is included in the annual
finance rate.
In summary, a strong case can be made for including
official and brokerage fees in the annual finance rate – although the
Credit
Contracts Act currently excludes them (a case can also be made for
including professional fees). As well, some charges are ambiguous,
because of
judicial interpretation of the Credit Contracts Act.
6.2 Inherent limitations of the annual finance rate[14]
The annual finance rate has some inherent limitations as a concept:
(a) the best financial interests of consumers often depend on subjective considerations but the annual finance rate is an “objective” measure
(b) it does not provide a reliable guide that can be used by consumers without further interpretation
(c) no precise explanation exists of how consumers should interpret the annual finance rate
(d) many consumers probably do not have the reasoning skills to properly evaluate and interpret the annual finance rate.
Each of
these points can be illustrated through examples. Example 4 (below) assumes that
the annual finance rate takes account of
all of the costs of a loan, and so is a
perfectly reliable guide to the “objective” costs of different
loans. Therefore,
the most likely “rule of thumb” for interpreting
the annual finance rate is: choose the loan with the lowest annual finance
rate.
On its own, however, this rule of thumb would lead many
consumers to act against their best economic interests – in particular,
when deciding how much credit to obtain or the length of the loan.
Example 5
A consumer has $15,000 in uncommitted savings and wishes
to buy a car for a cash price of $20,000. There is a minimum deposit of $5000.
Should the consumer borrow $5000 ($15,000 deposit) or $15,000 ($5000 deposit)?
The dealer offers one-year financing on the following
terms:
The dealer discloses that the annual finance rate for
the $5000 loan is 14.5%, dropping to 10.8% for the $15,000 loan. Using the
annual
finance rate and following the rule of thumb, the preferred deal is the
loan for $15,000. The consumer could also pay back the $15,000
over three years,
at the same annual interest rate and administration fee. The annual finance rate
then drops to 9.6%. So, if the
consumer believes he or she should choose the
loan with the lowest annual finance rate, the best deal is to borrow $15,000
over three
years.
In Example 5, the rule of thumb may have pointed the
consumer in the wrong direction because in reality, it may well be in their best
private financial interest to choose the loan for the lower amount and pay it
off as quickly as possible.[15] This
depends on the borrowers’ subjective circumstances, thus illustrating
point (a) above.
Point (b) can be illustrated by considering any loan which includes a fee: when the choice is between a short-term loan or a longer-term loan (given the same principal, interest rate and fee), the short-term loan will give a higher annual finance rate than the long-term loan. This is because the finance rate calculation will “spread” the fee over a longer period. The same effect applies with loans of different amounts: the fee will be a higher proportion of a smaller loan and will therefore result in a higher finance rate. Strictly, therefore, the annual finance rate is only a reliable guide to the cost of different loans when the loans are of the same size and duration (the amount of the repayments, the total amount of payments and the dollar cost of borrowing will serve as equally reliable guides to the cost of the loan in these circumstance).
There are further problems in comparing annual
finance rates if a borrower has a “sunk cost” (such as a brokerage
fee
that will not be recovered) as part of the annual finance rate for a loan.
Because the sunk-cost component cannot be got back, it
must be disregarded when
comparing the annual finance rate with that for other loans (see Example 5).
Example 6
Two years ago, a consumer paid a $750 brokerage fee for a
$25,000, five-year, second mortgage. The interest rate is 12.9%; the annual
finance rate, including the brokerage fee, is 14.3%.
Another lender
offers to refinance the remaining balance at an interest rate of 13.3%. This
lender has no fees, so the annual finance
rate is also 13.3%. As 13.3% is lower
than 14.3%, should the consumer refinance?
The answer is no, because the
annual finance rate on the existing loan includes the brokerage fee. The
comparison should be based
on the interest rate – not the annual finance
rate – of the existing loan.
Therefore, the consumer must replace
the rule of thumb which tells him or her to choose the loan with the lowest
finance rate, with
a new rule of thumb that states:
choose the loan with the lowest finance rate, but only if the loans are of
the same amount and duration, any sunk costs have been
disregarded and your
private financial circumstances have been considered.
6.3 Problems with the timing of disclosure
This
section specifically looks at problems in timing the disclosure of the annual
finance rate, but the analysis also applies to
the disclosure by lender to
borrower of cost-of-credit information generally.
If disclosure is to
help consumers in comparison shopping for credit, it is essential that the
information is disclosed sufficiently
early for consumers to use it in making a
decision.[16] Information provided
to consumers who are already becoming locked into a particular deal will not
help them in deciding whether to
go ahead or not.
Transaction costs for
consumers in obtaining information about the cost of credit need to be
considered. For instance, if a consumer
is looking for the best credit deal
before buying a used car, they need to weigh up at a minimum:
It will inevitably require discussion
with the lender before these details are settled. The consumer will have to
undertake similar
discussion with other lenders to find the most favourable
credit deal. To actively comparison shop in these circumstances requires
a
considerable investment in time and
effort[17].
6.3.1 Timing of the annual finance rate under the Credit Contracts Act
By
the time a consumer has signed or is about to sign a contract for a fixed
credit contract, the lender is able to calculate accurately the annual finance
rate. It is difficult to do it earlier, because the
effect of a given fee on the
annual finance rate cannot be worked out until all the details of the deal are
known. Once all the payment
terms have been settled and the annual finance rate
disclosed, the borrower is likely to be psychologically committed to the
contract.
The Credit Contracts Act contains a three day cooling-off
period for the borrower once the annual finance rate has been disclosed.
This
allows the borrower to shop around for credit by comparing the annual finance
rates for loans offered by other lenders and decide
which one is the lowest. It
seems unlikely, however, that consumers use the cooling-off period to comparison
shop for loans –
because of the significant transaction costs
involved.
6.3.2 Disclosure of the annual finance rate in advertisements
An
ideal time for disclosure of important information, such as the annual finance
rate, is in advertisements. Consumers are likely
to do much of their comparison
shopping based on advertisements. The Credit Contracts
Act[18] requires those lenders that
advertise an interest rate to also advertise the annual finance rate, but only
if it can be calculated at the time of the advertisement. Because the
calculation of the annual finance rate generally depends on the particular
loan
being arranged, lenders rarely disclose the annual finance rate in
advertisements.
6.4 Finance rates are not suitable for flexible credit products
The
Credit Contracts Act does not require lenders to calculate the annual finance
rate for revolving credit when those contracts include
fees. (If there are no
fees, the annual finance rate is equivalent to the annual interest rate.)
Instead, the annual interest rate
must be stated with a separate listing of the
fees that the consumer may have to pay. The annual finance rate therefore cannot
be
used to compare fixed credit with flexible-credit products.
To
calculate an annual finance rate for flexible-credit products, the lender would
have to make assumptions about the amount of the
advance(s) and the amount and
timing of repayments.[19] Any
calculations based on a particular set of assumptions will be of little
relevance to a borrower whose borrowing patterns are
different. In these
circumstances, an annual finance rate is likely to be misleading. Yet, as noted
earlier, flexible credit is becoming
the norm in lending. The annual finance
rate is therefore of limited usefulness for the most common form of consumer
lending.
6.5 The annual finance rate is inconsistent with pricing flexibility
The
Ministry’s first discussion paper, Part1: Setting the Scene,
proposed a number of goals for consumer credit law. Two of those goals were
effective disclosure and not restraining pricing flexibility
for lenders. There
is a tension between these two goals – and this tension affects the
usefulness of the annual finance rate.
Annual finance rates are
difficult to apply to products with variable interest rates because the exact
cost of the loan cannot be
known during its lifetime. For credit products with
variable interest rates, the total cost of credit and the annual finance rate
must be calculated as if the initial rate applied throughout the term of the
loan. Where there is no initial rate, the lender must
estimate the rate that is
likely to be applied. Thus the annual finance rate is unlikely to be a fully
accurate measure of the cost
of the loan.
Loans with
“honeymoon” periods are equally difficult to fit into annual finance
rates. This is where the lender discounts
its fixed interest rate for an
initial period, before the rate switches to its prevailing variable rate
at the time of the switch. It is impossible to accurately represent the cost of
the loan as an annual finance rate, as the lender
is obliged to make assumptions
about the future.
These factors have meant that the annual finance rate
has been criticised for only representing a “snap shot” of the cost
of credit at the time a consumer enters into a loan.
6.6 Finance rates add complexity to New Zealand credit law
Credit
law is inherently complex.[20]
Requiring lenders to disclose an annual finance rate adds further to this
complexity, while making it more difficult to draft, interpret,
apply and
enforce credit law. Adding to the complexity of the Credit Contracts Act is its
First Schedule and the sections that deal
with the annual finance rate.
Lying at the heart of this problem is that the real-life circumstances
lenders must calculate and disclose an annual finance rate
for are highly
variable.
If the law tries to deal with every possible situation, the
more complex it becomes. The provision in section 5 of the Credit Contracts
Act
that attempts to deal with contracts where the amount to be advanced is unknown
is extremely complex.
On the other hand, if the procedure set out in the Act
for calculating the annual finance rate does not address most variables, lenders
will frequently encounter situations where the procedure is unclear. For
example, the First Schedule of the Credit Contracts Act
assumes all contracts
have equal payment periods. The position of credit contracts with unequal
payment periods (such as “no
payments required for one year”) is
unclear.
6.7 The annual finance rate does not accurately reflect the “opportunity cost” of interest paid during the year
The
Credit Contracts Act has been
criticised[21] for requiring its
annual finance rates to be expressed as a nominal annual rate rather than
an effective annual rate. (See appendix 4 for a technical explanation of
the difference between nominal and effective rates.)
The nominal rate
represents interest as if it were paid in total at the end of the year. The
effective rate method is a more accurate
measure of the annual cost of credit to
the borrower. This is because it takes into account that interest is paid during
a year,
thus recognising its “opportunity cost”. For the lender,
receiving interest at the end of each month is worth more than
the receipt of
twelve times that amount at the end of the year. The borrower, however, is worse
off when interest is paid monthly,
because the opportunity to use (or invest)
the monthly interest is lost.
If the finance rate is to give the most
accurate information possible to consumers, then it is argued that it should be
expressed
as an effective rate.
6.8 Limited consumer understanding of finance rates
There
are no New Zealand empirical studies that measure consumer understanding of
annual finance rates. Research elsewhere, however,
suggests that there is little
consumer awareness and understanding of the concept and that it has little
effect on the behaviour
of consumers.
American studies have attempted to
measure consumer understanding of Average Percentage Rates (“APRs”).
These rates are
the equivalent of the annual finance rate – and the
consensus of researchers is that consumers do not understand
APRs.[22] Factors that influence
consumers’ understanding include education, the extent of the
consumer’s information search, seller-provided
information, age and
region. Some studies also suggested a positive correlation between levels of
income and understanding of the
APR.
American research is consistent with
survey findings of the UK Office of Fair Trading, which tested consumers on
their understanding
of the APR[23]
in a 1994 survey.
There seems no particular reason to believe that
consumer awareness of the annual finance rate is any greater in New Zealand. One
reason is that it is uncommon for advertisements here to refer to the annual
finance rate on a credit contract. In the UK and the
US it is mandatory for
advertisements to refer to the APR, which is likely to raise consumer awareness
of it.
Research has also shown that awareness of the APR/finance rate
does not translate into understanding or alter transactional behaviour.
This is
not surprising. Interpreting the annual finance rate requires a sophisticated
response by consumers.
6.9 Obscurely drafted contracts
Consumer
groups have frequently criticised the consumer credit market for the obscure
drafting of contracts. This was emphasised by
the Consumers’ Institute in
a report that also surveyed the opinions of a number of community-based consumer
advocates.[24] Such criticisms have
led to calls for standardising the presentation of terms and conditions of
credit contracts.
The Ministry of Consumer Affairs in its 1988 report on
consumer credit highlighted the issue of overly complex
contracts.[25] Since then, many
contracts have improved in terms of plain English and readability. For instance,
members of the Bankers’ Association
are committed to contracts that use
“plain language to the extent that it is consistent with legal
certainty”.[26] Further
improvements are likely, even in the cash-loan market, once the Personal
Property Securities Act 1999 becomes law. This is
because lenders will no longer
be able to use standard-form contracts for secured loans based on the Chattels
Transfer Act 1924.
This Act is noted for its arcane language.
In Chapter 9 a number of proposals are put forward for making the key
disclosure information about a credit contract easier to understand
by
consumers.
7. DISCLOSURE REQUIREMENTS IN OVERSEAS JURISDICTIONS
This
chapter discusses the disclosure requirements found in other countries. The
American Truth in Lending Act is briefly looked at,
as this Act is the model for
the annual finance rate concept found in most consumer credit law. The Canadian
Cost of Credit Disclosure
Act is also discussed, as it was only recently
recommended for adoption by all Canadian
provinces.[27] A short discussion is
provided of the UK Consumer Credit Act and the EU directive on consumer credit
(which is based on the UK Act).
Most of the focus of this chapter is on
the recent Australian Uniform Consumer Credit Code, as it was only recently
adopted –
and recently reviewed – and many lenders operate in New
Zealand and Australia. The Ministry believes some elements of the Australian
Code provide a way forward in developing a disclosure regime for modern consumer
credit products.
7.1 United States
The
most influential consumer credit statute is the US Truth in Lending Act. The
Act, based on a bill first introduced to the US Senate
in 1960, was passed in
1969. The concept of the “finance charge” (equivalent to the total
cost of credit in the Credit
Contracts Act) and the “annual percentage
rate” (equivalent to the annual finance rate) were first developed in this
Act.
When the Truth in Lending Act was passed certain fees (generally
relating to insurance) were excluded from the annual percentage rate
(APR).
These exceptions were fairly limited and certain preconditions had to be met.
Since then the Act has been amended a number
of times – initially to
simplify the disclosure regime and more recently to take account of more complex
credit products. The
Federal Reserve Board reported on the Act in September
1998[28] and recommended that the
finance charge and APR should be retained, but that it should be redefined to
include “all the costs
the consumer is required to pay to get the
credit”. This recommendation, if implemented, would more or less return
the APR
to its original form.
7.2 Canada
Canadian
provinces are all expected to adopt the Uniform Law Conference’s Cost of
Credit Disclosure Act, which was drafted in
1998.
The Act maintains an
approach to disclosure based around the APR. Lenders are required to disclose an
APR for “open credit”
(ie revolving credit) agreements (although not
for credit cards) and for consumer leases. They are also required to disclose an
APR
(based on “representative transactions”) in advertisements in
certain circumstances.
In developing the policy behind the Act, the
Canadian Consumer Measures Committee rejected the advice of the Alberta Law
Reform Institute.
The Institute had argued for abandoning the APR
model[29] and had produced a Draft
Act of its proposals for an alternative approach.
7.3 United Kingdom and Europe
The
United Kingdom passed its Consumer Credit Act in
1974.[30] The Act and its
regulations are detailed and complex. It follows the APR model, requiring
lenders to calculate a hypothetical APR
for certain “open credit”
agreements and for advertising purposes.
The European Union requires all
member countries to harmonise their consumer credit legislation with Directive
87/102/EEC. This directive
is largely based on the UK Consumer Credit Act. APR
calculations are required for credit card accounts.
7.4 Australia[31]
Australia has recently passed new consumer credit law that departs from the APR model found around the rest of the world. Australian legislation is of interest to New Zealand for several reasons. Both governments wish to harmonise trans-Tasman business regulation, and, as well, a number of lenders operate on both sides of the Tasman.
7.4.1 The Uniform Consumer Credit Code
The Uniform Consumer Credit Code came into force in all Australian States by 1 November 1996. It has two goals:
The basic approach is to combine maximum
pricing flexibility with maximum disclosure. The overall aim is to encourage
competition
and comparison shopping – additional consumer protection is
provided through reopening provisions.
7.4.2 Limited distinction between different forms of credit
The Code aims for a generic concept of a credit contract, avoiding distinctions – such as hire purchase, credit cards and so on – between forms of credit. As much as possible, forms of credit are treated in the same way. The distinctions that do remain are relatively insignificant:
7.4.3 Regulating interest
The
Code abandons the requirement for an annual finance rate. The “APR”,
as stated in the credit contract, is the annual
interest rate and does not
incorporate fees. The Code effectively prohibits flat-rate interest. It does
this by limiting the amount
of interest that can be charged on the outstanding
balance of the loan to no more than what would be calculated on a daily-rate
basis
(see 9.2.2 for further discussion).
7.4.4 Regulating fees
The
only restriction on the fees that can be charged for a loan is the requirement
that establishment fees, early repayment fees and
termination fees must not be
“unconscionable”. Reopening provisions allow the Courts to review
whether these fees are
unconscionable.
In deciding whether an
establishment fee is unconscionable, section 72 requires the Court to consider:
whether the amount of the fee or charge is equal to the lender’s
reasonable costs of determining an application for credit and
the initial
administrative costs of providing the credit or is equal to the lender’s
average reasonable costs of those things
in respect of that class of contract.
A similar test applies to the reasonableness of early repayment and
termination fees: the charges must not exceed a reasonable estimate
of the
lender’s loss and/or administrative costs resulting from the early
repayment.
The Code does not require any standard descriptions of credit
fees and charges, nor does it define interest or fees. It facilitates
maximum
pricing flexibility for the lender – and has been criticised for
overemphasising this at the expense of the Code’s
other goal of truth in
lending.
Regulations may be made to prohibit fees or set maximum levels
for them. As yet, no regulations have been made and none are proposed.
7.4.5 How disclosure works
Pre-contractual
disclosure
The lender must give prospective borrowers a standard form
before signing them up for the loan. The form is headed “Things You
Must
Know About Your Proposed Contract”. The borrower also receives a
pre-contractual statement containing relevant details
about the contract –
some of which are set out in a separate financial table.
The relevant
details in the pre-contractual statement are:
Contractual disclosure
The contract document
sets out the information in the pre-contractual statement plus the
following items:
The contractual disclosure may be in the same
format as the pre-contractual disclosure document. In practice, the consumer is
likely
to receive two copies of the contract.
Optional comparison rate
instead of a calculated finance rate
While there is no requirement for
lenders to disclose a calculated finance rate, the lender has the option of
disclosing a “comparison
rate” in its pre-contractual statements or
advertising. The formula for this comparison rate is similar to the standard
formula
for the calculation of a finance rate.
Few lenders choose to disclose the comparison rate. This is because it makes their charges appear higher than those competitors who do not disclose the rate. If a lender chooses to disclose a comparison rate, it must be accompanied by a warning to consumers that the rate may be misleading.
7.4.6 Review of the Code
In
August 1999, the Ministerial Council on Consumer Affairs completed a
post-implementation review of the Code. Among the conclusions
of the review
were:
7.4.7 Lessons for New Zealand: an assessment of the Australian model
Strengths
The
Code has been successful in allowing a greater degree of innovation by lenders
(compared with the previous Australian regime)
leading to more diverse products.
This greater flexibility is largely attributable to the removal of the former
prohibition on charging
fees.
The Code requires lenders to adopt the
most transparent method of calculating interest and effectively prohibits the
flat-rate method,
still used in New Zealand. There is consequently no need for
either inaccurate and unfair statutory formulas (the Rule of 78) or
relatively
complex statutory formulas (the actuarial method) when calculating the
outstanding balance of a loan if it is repaid early.
Problems
The lack of standardisation or definition of fees and
charges makes it more difficult for a consumer to work out the effect of a
particular
fee when making a credit-purchasing decision. Further, some fees
cannot be known at the outset of the contract; yet these must be
disclosed
“as far as ascertainable”. This can lead to uncertainty, and so
lenders have responded with extremely detailed
disclosures of mandatory and
contingent fees.
Consumer advocacy groups in Australia have argued that
there is a lack of transparency in consumer lending because of the sheer variety
of fees that are now charged. They claim that most advertising focuses on
initial interest rates – and this misrepresents the
true cost of a loan,
particularly when the advertised rate is a low-start rate.
Their
suggested solution is a “comparison rate” to be disclosed in
advertising.[32] This is similar to
an annual finance rate. The final methodology is yet to be finalised for the
comparison rate. Some disadvantages
of this concept are discussed in Chapter 9
(section 9.3.1).
8. TRANSPARENCY ISSUES WITH EARLY REPAYMENT OF LOANS
Chapter 6 discussed the transparency issues that occur when a consumer enters into a credit contract. This chapter considers the transparency issues that arise when a borrower decides to repay a loan early. These two issues are related – and there is a specific focus on the information (or the lack of it) that borrowers receive from lenders about the financial effects of repaying a loan early.
8.1 The borrower’s right to early repayment
The
borrower has a right to early repayment of a hire purchase contract
through section 22 of the Hire Purchase Act.
This right does not exist
for any other forms of credit except for mortgages of
land,[33] where a borrower may repay
a mortgage early but becomes liable for the full amount of interest as if the
mortgage had run its full
term. In practice, mortgage lenders rarely exercise
this right.
Whether the borrower has a right of early repayment in
contracts other than hire purchase and mortgages, depends on the individual
credit contract.
8.2 Charges for early repayment
In
its annual report[34] for 1998/99
the Office of the Banking Ombudsman reported an increase in complaints about the
cost of early repayment of fixed interest
housing loans. Notably, a drop in
interest rates during 1998 meant that some borrowers were keen to take advantage
of lower rates
by refinancing, but the cost of repaying existing loans made this
exercise uneconomic.
The Banking Ombudsman concluded that in principle
it is neither unlawful nor unreasonable for a bank to recover the cost of early
repayment from its customers.
The Ministry of Consumer Affairs agrees
with this – but asserts that, in the interests of transparency, borrowers
should receive
meaningful information on the financial effects of early
repayment at the time they enter into the loan as well as when contemplating
early repayment.
The Credit Contracts Act, however, does not require any
specific disclosure by lenders about the cost of early repayment of a loan.
8.3 Factors to consider in the early repayment of loans
When
early repayment involves a cost to borrowers, this needs to be part of their
decision-making process. These costs can take a
number of forms:
These last
two points are discussed in more detail in the sections that follow.
8.4 The 90% rebate rule under the Hire Purchase Act 1971
The
Hire Purchase Act anticipated that most hire purchase contracts would calculate
interest on a flat-rate basis. In the event of
early repayment, the lender was
given the right to retain 10% of the precalculated but unearned interest on the
loan. The consumer’s
rebate was limited to 90% of the precalculated
interest still to be paid on the loan, plus the remaining principal
instalments.
At the time of passing the Hire Purchase Act, Parliament
accepted arguments from the finance industry that there were considerable
documentation and administration costs in setting up hire purchase agreements.
If these costs could not be recovered from those borrowers
who repay early, they
would be borne by all borrowers generally.
These setting up costs,
however, could be recovered through a specific fee at the start of the contract
– and this is, in fact,
normal practice. Lenders could also be allowed to
charge a fee for the specific costs of processing an early repayment. This would
be more transparent and equitable because the size of this fee could be related
to the lender’s actual costs – in accordance
with the principle of
“user-pays”. Like the Rule of 78, the 90% rebate rule can operate
particularly unfairly for loans
with long terms or high finance charges –
in these circumstances, the amount charged by the lender will vastly exceed the
reasonable
costs of processing an early repayment (see Example 8).
8.5 The Rule of 78
When
a lender uses the Rule of 78 to calculate the rebate for early repayment, this
results in further costs for consumers. The rule
is inherently inaccurate
because it provides an approximation only of the interest owing at any
particular point during the term of the contract. (The Rule of 78 is fully
described in Appendix
Five.)
As mentioned in section 8.3, any inaccuracy
benefits the lender; the effects of this are more marked when contracts have
high charges
or long terms and if the loan is paid off quite early in its term.
In some cases, despite payments having been made, the cost of
paying off the
loan early can be greater that the original amount borrowed (see Examples 7 and
8 on the next page).
The difference between the cost of early repayment
calculated according to a daily rate or actuarial basis, and the amount
calculated
according to the Rule of 78 becomes, effectively, a hidden charge
paid by the borrower to the lender. This charge does not relate
to any
particular administrative cost, and so it can be regarded as the lender’s
unearned interest. The consumer may not even
notice the charge because it is
buried away as part of the overall rebate calculation.
The same lack of
transparency means that the borrower cannot weigh up at the start of the
loan the effect of any charges for early repayment. Standard-form hire purchase
contracts are not required to disclose early
repayment charges, and most
contracts do not draw to the borrower’s attention the consequences of
early repayment. Instead,
they simply include a clause stating that
early-repayment rebates will be calculated according to sections 22 and 23 of
the Hire
Purchase Act.
Use of the Rule of 78 can be abused and lead to
further consumer detriment. If a loan is frequently refinanced, and the
outstanding
balance calculated using the rule, the lender is continually
recovering unearned interest. This is a systematic practice in the US
“marginal lender” market, where it is called “flipping”,
and has lead to restrictions on the use of the Rule
of 78. The Ministry has not
investigated whether similar levels of abuse take place in New
Zealand.
The application of the Rule of 78 can have startling
consequences, as the following two examples demonstrate:
Example
7
Amount advanced: $8,000.00
Term: 1 year, 12 monthly
instalments.
Monthly instalment: $800.00
Interest rate: 20% flat rate
(35.1% finance rate)
Cost of credit $1,600.00
The borrower decides to
pay off the balance of the loan during the 8th month of the contract, i.e. after
7 monthly repayments have
been made, thus:
Total of payments made to
date: $5,600.00
Remaining 5 instalments: $4,000.00
Rebate under Rule of
78: $205.13
Balance required to repay loan: $3794.87
Example
8
This example considers a longer loan at a very high interest rate.
$8,000 is borrowed, repayable by 60 monthly instalments. Interest
is required at
the flat-rate of 40%
Amount advanced: $8,000.00
Term: 5 years, 60
monthly instalments.
Monthly instalment: $400.00
Interest rate: 40% flat
rate (56.1% finance rate)
Cost of credit $16,000.00
If the borrower
wishes to pay off the balance of the loan during the 8th month of the contract,
i.e. after 7 monthly repayments have
been made, the result is as
follows:
Total of payments made to date: $2,800.00
Remaining 53
instalments: $21,200.00
Rebate under Rule of 78: $12,048.09
Balance
required to repay loan: $9,151.91
Although seven monthly repayments
totalling $2,800.00 have been made, the cost of paying off the loan is greater
than the amount of
the original loan.
If, in this example, the lender
claims 10% of the precalculated interest as a settlement charge, as entitled to
under the Hire Purchase
Act, the consumer loses a further $1,204.81!
8.6 Rule of 78 in overseas legislation
Most countries with similar consumer credit law to New Zealand have abolished or restricted the Rule of 78, or at least considered doing so. Lenders in Canada[35] or Australia[36] can no longer use the rule to calculate the outstanding balance on a loan. As was mentioned in the previous section, the US has also limited the extent to which it can be used by lenders.[37] In the United Kingdom, the Rule of 78 has been heavily criticised by the Director General of Fair Trading;[38] and the Office of Fair Trading and Department of Trade and Industry are currently formulating alternatives.
PART THREE
9. OPTIONS FOR REFORM
The
previous chapters have identified serious limitations in New Zealand’s
current consumer credit law in terms of initial disclosure
and the early
repayment of credit. Reforms are necessary to fully promote transparency of
disclosure for consumers in these two key
areas.
The first chapter of
this discussion paper stated five principles that any transparency regime should
attempt to meet. These were:
This
chapter now looks at various options for initial disclosure and early
repayment of credit so that the transparency regime for consumer credit law
can better meet these principles. No single approach can satisfy
all five
principles equally well, and so various options are presented on a number of
issues. This helps clarify the trade-offs involved
in developing a more
effective transparency regime.
There are two main options for initial
disclosure: reforming aspects of the Credit Contracts Act; or introducing
some aspects of the Australian Consumer Credit Code, thereby moving
away from
both the annual finance rate approach and the goal of facilitating comparison
shopping through lender to borrower disclosure.
(Sections 9.1 and 9.2 discuss
these options – and the modified Australian approach is developed in some
detail.)
Timing of disclosure is an important issue. Various options are
presented to make the time at which consumers receive initial disclosure
more
useful to them (section 9.3).
Documentation and presentation of
disclosure information can be approached from either a flexible or a more
prescriptive viewpoint.
Both types of option are discussed – and a
proposal for an innovative centralised disclosure regime is briefly investigated
(sections 9.4 and 9.5).
The final section looks at how to standardise
consumers’ rights to repay credit early – and to make sure that both
borrowers
and lenders are not disadvantaged by early repayment.
9.1 Options for improving initial disclosure – reforming the Credit Contracts Act
9.1.1 Prevent lenders from imposing fees
Advantages
One
option would be to prevent lenders from imposing fees. From a consumer
perspective, transparency would be improved if lenders
only charged
interest:[39]
Disadvantages
The advantages
of this to consumers are more illusory than real. If a creditor had a single
interest rate for all loans, with no ability
to recover costs through fees, it
would lead to market distortions. Borrowers of large amounts would effectively
subsidise borrowers
of smaller amounts, and long-term borrowers would subsidise
short-term borrowers. This effect was noted by the Prices Surveillance
Authority[40] in Australia in 1992
when it recommended lifting the prohibition on charging fees for credit card
facilities.
Lenders might respond to a regime in which they could not
charge fees with graduated interest-rate pricing – that is, different
rates for different proportions of the balance of the loan, with the initial
proportion attracting a higher rate. Another possibility
is customised-rate
pricing – lenders would charge different interest rates for loans of
different amounts or terms, or a different
interest rate for every credit
contract. These practices would not improve consumers’ ability to compare
the cost of loans.
Most importantly, restrictions on fees would limit
product development and inhibit the ability of lenders to develop differentiated
products. This is because lenders could no longer match specific costs to
specific services for meeting borrowers’ needs.
9.1.2 Clarify the charges to be included in the finance rate
It
was shown in section 6.1 that the total cost of credit and the annual finance
rate are not necessarily accurate indications of
the cost of credit: some
charges that are definitely a cost of credit to the consumer are not included in
the calculation of the
annual finance rate. This limits the usefulness of the
annual finance rate for consumers when comparison shopping.
The Credit
Contracts Act could be redrafted to give greater clarity about what must be
included in the annual finance
rate.[41] Certain types of fee, such
as brokerage, application and official fees, could be required to be included.
Alternatively, all fees
that must be paid by the borrower to obtain the
credit could be a mandatory part of the annual finance
rate.
Advantages
This reform would make the annual finance rate
a more precise reflection of the cost of credit. Borrowers who compared finance
rates
when choosing between credit deals would have a better indication of the
relative cost of different credit options.
There would also be greater
clarity for lenders and less uncertainty over whether certain types of fees
should be included in the
annual finance rate. Current inconsistent judicial
authority could be replaced by clearer statutory prescription.
There is
no real disadvantage to lenders. There would be if lenders were required to
apply the finance rate to calculate the outstanding
balance on a loan: in the
event of early repayment, lenders would have to give proportionate refund of the
fees paid by the borrowers.
However, as discussed in section 5.1, the finance
rate is a measure only and does not affect the distribution of charges over the
entire loan.
Disadvantages
Such a reform would not deal with
the criticisms of annual finance rates concerning the timing of disclosure. Nor
would it deal with
the inherent limitations of finance rates: that they are not
always effective when comparing loans of different amounts or time periods,
or
when comparing revolving credit with fixed credit; and they cannot take account
of the subjective circumstances of the borrower.
These points have been detailed
in Chapter 6.
9.1.3 Disclose effective rates rather than nominal rates
Advantages[42]
From
a technical perspective, the effective rate is more accurate to consumers than
the nominal rate in stating annual finance or
annual interest rates. It may
therefore be more useful. The argument in favour of the effective rate method
was outlined in section
6.7. In summary, it pointed out that the effective rate
measures the time value of money – specifically the “opportunity
cost” to the borrower of paying interest regularly throughout the year,
rather than as one payment at the end of the year.
The use of the effective rate allows for more accurate comparison of
contracts that have different payment periods, although this
is only really
notable for comparisons between contracts where payments are made annually or
half-yearly with contracts where payments
are made monthly or for a shorter
period.
Disadvantages
The most common argument against
effective rates and in favour of adopting a nominal rate of interest has been
that the latter is
considered to be simpler to calculate. In fact, the effective
rate method is no more complex than the nominal rate method –
and in some
cases it is simpler and more flexible, such as where there is not a uniform
period between instalments, as with contracts
that have “payment
holidays”.
An argument in support of nominal rates is that they
have been in use since before the passing of the Credit Contracts Act in 1981,
and so there would be a significant cost in changing systems. In addition,
Australian credit law does not require the disclosure
of the effective rate.
(Only the UK and Europe use effective rather than nominal rates.)
(See
Appendix Four for a definition of nominal and effective interest rates.)
9.2 Options for improving initial disclosure – a synthesised approach
New
Zealand could adapt the disclosure provisions of the Australian Uniform Consumer
Credit Code. This removes the requirement for
a calculated annual finance rate,
but requires comprehensive pre-contractual and contractual disclosure of all
fees and charges.
The Code was discussed in Chapter 7. It was clear from
the commentary that significant improvements would be required if this approach
to consumer credit were to be adopted in New Zealand without considerable cost.
However, the Ministry of Consumer Affairs believes
that some aspects of the
Australian Code are worth considering in New Zealand to create a
“synthesised” approach.
Features of a synthesised approach
could include:
9.2.1 No calculated annual finance rate
The experience, both in New Zealand and internationally, with calculated annual finance rates or annual percentage rates has been one of limited success. Inherent problems with the concept have also been identified.
There appears to be a reasonably strong case for abandoning the finance rate
in New Zealand consumer credit law as it has major drawbacks
in promoting
transparency.
Even if this is so, the effectiveness of alternative
regimes still needs to be properly assessed. It might also be feasible to
continue
to require disclosure of the annual finance rate on fixed-credit
products. If this approach was taken, it would be necessary to assess whether
the finance rate should be calculated using an effective
or nominal rate and the
range of charges that should be included.
9.2.2 A prescribed method for calculating interest charges
One
important function carried out by the annual finance rate – standardised
disclosure of interest charges – could be
achieved if a provision similar
to section 26 of the Australian Code was adopted here. This
section[43] limits the interest that
a lender can charge by specifying that it cannot be more than what would be
calculated by applying a daily
interest
rate[44] to the outstanding daily
balance of the loan; or by applying a monthly, quarterly or half-yearly interest
rate to the average of
all daily balances during the month, quarter or
half-year.
There are a number of advantages to be gained from adopting
the daily accrued-interest method:
The main
disadvantage of this option is that there would be a transition cost for lenders
currently using flat-rate methods to calculate
interest. These lenders would be
required to change their computer programmes and documentation, involving some
one-off expenditure.
As already indicated, such expenditure is unlikely to
outweigh the advantages to be gained from adopting the new approach.
9.2.3 A definition of interest
The
Australian Code has been criticised for not defining
interest.[46] Thus, for certain
types of fee there may be confusion as to whether it is actually a fee or an
interest charge, providing uncertainty
for lenders and borrowers.
One
way to reduce this uncertainty is to adopt a definition of interest, such as
that used in the Canadian Cost of Credit Disclosure
Act:
“interest” means charges that accrue over time and are determined
by applying a rate to an amount owing from time to time
under a credit
agreement.
This definition clearly distinguishes interest from other
fees. It is also compatible with a requirement for lenders to calculate
interest
by the accrued-interest method.
9.2.4 Regulated fees
One
criticism of the Australian Code is that the lack of restriction on fees, when
combined with the abandonment of a calculated annual
finance rate, means that
consumers have no simple basis for comparing different credit contracts. This is
made worse by the fact
that there is no standardisation of terminology, so fees
can be called by whatever the lender
chooses.[47]
The four main
options for regulating fees are set out below.
Option 1: a standardised
description for all the fees that may be charged
This approach is
followed in the US, which names the different types of fee for the purpose of
calculating the APR (annual finance
rate). It has proved difficult for
regulators to keep up with market practice as new fees
are introduced
– which raises the issue of whether the substance or purpose of the fee
should be regulated, rather than how
it is to be described.
Option 2:
name and describe the types of fees that the lender can retain in the event of
early repayment
The Hire Purchase Act requires lenders to refund all
“terms charges” paid in advance. “Terms charges” refers
to the total cost of credit as defined by the Credit Contracts Act.
Option 3: allow the Courts (or Disputes Tribunal) to review fees
against certain criteria
The Australian Code allows the Court to review
establishment fees, early repayment fees and termination fees to decide if they
are
“unconscionable”. This has the effect of restricting the type of
establishment, early repayment and termination fees
that may be charged. For
example, an establishment fee must relate to the cost of approving and setting
up a loan.
Option 4: allow lenders to charge only certain types of
fee
The Alberta Law Reform Institute and the Uniform Law Conference of
Canada in a project on consumer credit recommended abandoning a
calculated APR
and instead setting some restrictions on the fees lenders can charge. Lenders
could impose:
The Institute’s
recommendations were that all fees had to relate to one of these categories. Any
fee that did not fall under
any of the above headings was effectively
prohibited. The Institute did not propose regulating the terminology describing
the fees,
but rather the substance of their purpose.
The most significant
fee would be the flat charge. Lenders would only be able to charge one flat
charge for fixed credit at the start
of the loan. This was to compensate the
lender for internal costs in administering the loan. The charge has no relation
to the size
or duration of the loan. Interest is used to charge the
lender’s price for the use of their money over the term of the loan.
Emphasis was given to disclosing the flat charge as early as possible, including
in advertisements.
The disadvantage of this scheme is that it might be
incompatible with current market practice (such as charging ad valorem
fees) and could inhibit the development of new products.
9.2.5 Reduced disclosure requirements
Disclosure
of too much information (information overload) has been identified as a problem
with the Australian Code and the Ministerial
Council recommended that simplified
requirements be developed. The Council also concluded that disclosure did not
result in consumers
“shopping for credit”. These are significant
problems, since disclosure has to be meaningful if it is to help consumers
to
assess a credit deal and choose the best loan for their individual
circumstances.
The Ministry considers there are two practical options
for disclosure regimes.
Option 1: require disclosure of specific
information
Under this option, decisions are made about what information
the consumer really needs to know in order to make an informed choice
when faced
with a particular set of terms and prices – the emphasis of disclosure is
therefore not necessarily on comparability
but on bringing key terms to the
borrowers attention. There is a strong argument for not requiring the disclosure
of fees that are
purely contingent – for example, card-replacement fees
and assignment fees. Such fees must be disclosed under the Australian
Code.
The requirements of the Credit Contracts Act provide a basis for what
might be disclosed. These specific requirements could include:
Other requirements may be of a lower priority:
Another consideration is whether the same disclosure
requirements should cover all credit contracts, or whether disclosure
requirements
should be tailored to special features of the credit transaction.
That is, should credit sales, mortgage loans, cash loans and revolving
credit be
treated separately? It is likely that certain differences – such as the
existence of security – should result
in specific disclosure requirements
for different types of credit. But, in general, a set of rules should apply to
all forms of credit.
Option 2: a performance standard rather than
specific requirements
This option assumes that:
A
performance standard would be developed for the drafting and presentation of
contracts, while leaving the exact format and content
of disclosure to the
lender. The performance standard might include:
Performance standards give lenders considerable
flexibility. They can also lead to uncertainty because the detail is less
specific.
Some lenders may over-compensate by disclosing too much information.
From the borrower’s point of view, it provides no guarantee
that
information from different lenders will contain the same content and format. It
is therefore an abandonment of the goal of comparability
as far as documentation
is concerned.
Even if comparison shopping on the basis of comparability
of documentation is an unrealistic goal for a disclosure regime, prescribed
disclosures may be useful in bringing the key financial details to the attention
of the borrower without imposing too much cost on
the lender.
QUESTIONS FOR SUBMITTERS ON SECTION 9.1 AND 9.2
(a) Which is your
preferred approach to disclosure:
i) an approach based on the finance rate?
Or
ii) an approach which abandons the finance rate?
(b) If the requirement on lenders to disclose a finance rate is to be
maintained:
i) For what forms of credit (e.g. credit cards, fixed credit)
should lenders be required to make the finance rate
calculation?
ii) On what basis should certain charges be included or
excluded from the finance rate calculation?
iii) Are there any charges
which are currently not required to be included in the finance rate
calculation that should be?
(for example, brokerage fees)
iv) Should the
finance rate be calculated as a nominal or an effective rate?
If a requirement to disclose the finance rate is to be abandoned:
(c) Should a restriction be placed on the methods that lenders use to
calculate their interest charges (as described in 9.2.2)?
(d) Should
“interest” be defined, and if so, how?
(e) Which option do you
support for the regulation of fees:
i) A description in legislation of the
fees that may be charged?
ii) A description in legislation of the fees that may be charged, but only
for the purposes of clarifying early repayment rebates?
iii) A provision
similar to Australian law, allowing the Courts to review fees for
“unconscionability”?
iv) Explicit restrictions on the fees that
may be charged by lenders?
(f) Would you prefer prescribed disclosure requirements or a performance standard to regulate what is disclosed?
9.3 Options for timing
Timing
of information is a notoriously difficult area in consumer credit. This section
briefly considers various options for the timing
of information to consumers
about possible credit deals.
9.3.1 A comparison rate in advertisements
Advertising
is perhaps the most obvious means for providing early disclosure of information,
because information can be given to a
consumer well in advance of a
credit-purchasing decision. Some overseas jurisdictions oblige lenders that
advertise to include an
APR for a “representative transaction” or a
range of representative transactions. This is similar to the proposal currently
being debated in Australia to require a “comparison
rate”.[48]
Although
the proposal has not been fully developed, it appears the comparison rate might
be based on the average cost for the average-sized
loan of the particular lender
and would be limited to fixed-term products.
Comparison rates, however,
are likely to be misleading. For instance, the comparison rate will make
longer-term loans appear less
expensive than the average loan used in the
comparison rate. This is because the effect of a fee on the comparison rate will
be inversely
related to the size and duration of the loan. The opposite effect
will apply to loans that are of shorter terms than the average
loan – they
will appear more expensive.
Some borrowers may be better off borrowing a
larger amount over a long period of time, while others may benefit from
borrowing as
little as possible and paying it off quickly. It is impossible for
a comparison rate to capture such subjective considerations.
Advertising
is de-emphasised as a disclosure medium under the Credit Contracts Act. The most
important restriction is that the advertisement
must not be misleading or
deceptive in terms of the Fair Trading Act.
There might be a case for
more restrictions on New Zealand credit advertisements. For example:
Interactive advertisements on the Internet could significantly
reduce search and transaction costs for consumers when looking for
the least
expensive form of finance. It is likely that mainstream lenders will
increasingly use the Internet for credit advertising,
particularly as Internet
banking develops.
9.3.2 Pre-contractual disclosure
Australia
requires the lender to produce a pre-contractual disclosure statement that
contains key information about the cost of the
loan before any signing up
can begin. The key financial information must be set out in the form of a table.
Pre-contractual disclosure is aimed at giving the borrower information
to consider and, preferably, take away to compare with information
provided by
other lenders. Whether this happens in practice depends on the transaction costs
involved in getting the information.
It appears unlikely that the lender would
prepare a pre-contractual statement until the consumer appears to be committed
to the transaction.
In Australia, lenders have complained about the compliance
costs in producing pre-contractual disclosure statements.
9.3.3 Cooling-off periods
The
Credit Contracts Act has a three day cooling-off period, although it is doubtful
that it is used for extensive credit shopping
by consumers. Obtaining the
relevant information from a range of lenders involves consumers in too high a
level of transaction costs.
The cooling-off period, however, may perform
a useful function by giving the borrower time to properly read and evaluate the
contract,
question its terms, seek advice, or reconsider the entire deal.
Occasionally, it may prompt the borrower to explore other sources
of finance. It
is therefore consistent with the “warning function” of disclosure
(see section 5.3).
If borrowers are given an unrestricted right to early
repayment of a loan, then cooling-off periods may be less important. Consumers
will have the ability to refinance at any point during the duration of the loan
without penalty. The policy issues relating to early
repayment are discussed
fully in section 9.6.
QUESTIONS FOR SUBMITTERS ON OPTIONS IN 9.3
(a) Is a “comparison rate” for advertisements for credit, on balance, desirable?
(b) How might such a measure work and what do you see as its advantages and disadvantages?
(c) Are there any other restrictions that should be placed on the advertising of credit? Is the Fair Trading Act adequate for this purpose?
(d) Do you support a pre-contractual disclosure process? Why?
(e) Do you support a cooling-off period for credit contracts? Why?
9.4 Options for documenting and presenting disclosure information
This section briefly notes some options for improving the documentation and presentation requirements of credit contracts. Many products have complex terms and conditions – while stylistic devices can help make these more understandable, their impact on assisting consumers in choosing credit products may be relatively small.
9.4.1 Regulating for presentational standards
In
the past, the Ministry of Consumer Affairs has put forward proposals for a
Consumer Information Standard under the Fair Trading
Act.[49] A standard could regulate
such presentational details as font size, placement of financial particulars and
other matters of presentation.
The Ministry no longer considers that a
Consumer Information Standard is appropriate for consumer credit disclosure.
This is because
disclosure is inherently tied up with regulating substantive
issues, such as the calculation of interest. The regulatory framework
for
specific disclosures should be contained in one Act and not shared with the Fair
Trading Act.
The Australian Code requires the presentation of a
“financial table”, setting out key disclosure requirements. No
guidance
is provided on the format of the table. In its review of the Code, the
Ministerial Council recommended adopting the prescribed table
in the US Truth in
Lending Act as means of informing the consumer of key terms and statutory
rights. This table presents essential
information in a concise form. It is a
possible option for New Zealand – and an example is given in Appendix Six.
9.4.2 Model forms or templates
Legislation
can contain model forms to encourage lenders to adopt a particular standard or
disclosure format as an alternative to
prescribed forms. The Hire Purchase Act
has a model form in its First Schedule – although lenders must detail the
particulars
contained on the form, they only have to “substantially
comply” with the format. As many consumer credit transactions
fall within
well-defined categories, model forms can be developed without major difficulty.
The advantage for lenders is that if
they comply with model forms they have met
their statutory requirements.
9.4.3 Broad presentation guideline
The
same goal may be achievable under a more flexible option. That is, to provide a
broad presentational guideline. For instance,
section 6(1)(b) of the Canadian
Cost of Credit Disclosure Act states:
Where a disclosure is required ... to be made in a disclosure statement, the disclosure statement ... must express the required information clearly, concisely, in a logical order and in a manner that is likely to bring the information to the borrower’s attention.
This type of approach sets a legislative objective without prescription,
leaving presentation details ultimately to the lender.
QUESTIONS FOR
SUBMITTERS ON 9.4
Which option, if any, do you believe will encourage
lenders to write clearly formatted, plain language contracts:
(a) A consumer
information standard made under the Fair Trading Act?
(b) A performance
standard?
(c) Model forms or templates? How might this option work and what should they
cover?
Are there any other options which might achieve this result?
9.5 A new approach to issues of format, content and timing of information: centralised disclosure
Section
9.2.5 considered setting a performance standard for the disclosure of contract
terms. This was based on the assumption that
direct disclosure of information by
lenders to consumers does not result in comparison shopping – largely
because of transaction
costs and timing problems.
The approach to
centralised disclosure discussed in this section also assumes that comparability
is unlikely to be achieved through
direct lender-to-borrower disclosure. It
would be compatible with a model that emphasises less prescription in the
presentation of
contracts.
The core feature is a centralised, independent
agency to collect data from different lenders about the cost of their individual
credit
products. Consumers shopping for the best credit deal could then access
the agency, probably over the Internet, to receive comparative
data about the
credit available from many different sources. The information could be
structured, including any calculations, so
that is maximises comparability and
accuracy (for example, it could disclose effective interest rates).
A
similar model exists for the retail electricity market with the
“Powerswitch” facility operated by the Consumers’
Institute
over the Internet.
If necessary, the agency could be established by
legislation. Lenders that participated could then be given reduced disclosure
requirements,
as disclosing directly to borrowers for comparative purposes is no
longer necessary. This may provide an incentive for lenders to
participate.
Those lenders that did not participate may still be required to meet more
detailed disclosure requirements.
Advantages
The main benefit of this system is that it would
significantly reduce the search costs and timing problems faced by consumers in
shopping
for credit. It would simplify many of the current disclosure
requirements for lenders. Practical problems about the inclusion of
different
types of fees in annual finance rates would be solved, if the agency disclosed
them rather than the lenders directly. In
an interactive system, consumers would
be able to customise the information they receive by keying in their own
preferences about
the amount of credit, the frequency and amount of repayments
and other details.
Disadvantages
The main disadvantage is that
the agency would have to be established, administered, marketed, and funded. It
is unlikely that a system
would operate successfully if funded entirely by user
charges.[50]
A system would
have to be established for collecting data from a sufficient number of lenders.
Some lenders, notably cash-loan companies,
could be reluctant to provide
information. Similarly, some groups of borrowers (those who access marginal
lenders) might not have
ready access to a centralised disclosure system based on
the Internet. A centralised disclosure system will not create competitive
pressure in this part of the market unless a significant number of
“shoppers” use and access the system to search out
the lowest prices
and most favourable terms.
In summary, a centralised disclosure model
offers many attractions for achieving transparency and the goal of comparability
in consumer
credit. It is an untested model, but the Ministry has raised it here
in order to gauge the level of interest.
QUESTIONS FOR SUBMITTERS ON
9.5
(a) What are your views on a centralised disclosure mechanism for consumer credit?
(b) Is such a model realistic and what do you see as its advantages and
disadvantages?
(c) How might such a proposal be established and funded?
(d) Do you foresee any problems in gathering data from lenders for centralised disclosure?
(e) If such a proposal was to be acted upon, what relationship should it have to the overall regulatory framework for consumer credit?
(f) Would participation in a centralised disclosure process justify reduced disclosure requirements for individual credit contracts?
9.6 Options for the early repayment of credit
9.6.1 The consumer’s right to early repayment
The
right to repay credit early allows consumers to deal with a change in their
personal circumstances and to protect their overall
financial interests.
Borrowers commonly make use of it when they decide to sell an asset purchased
with credit, or if credit becomes
available on better terms (such as after a
drop in interest rates). A right of early repayment also promotes competition in
the credit
market, as consumers will have an incentive to search for lower
prices during the term of a loan.
There is no reason why borrowers
should be given a right of early repayment for hire purchase contracts but not
for other forms of
fixed credit. For example, there is no difference in
substance between a borrower who obtains a fixed, secured loan from a bank to
buy a good, and another borrower who buys the same type of good on hire
purchase.
Currently, one of these forms of credit includes a statutory
right to early repayment and the other does not. The Ministry of Consumer
Affairs’ view is that consumers should have a general right to early
repayment for all forms of credit, including mortgages.
9.6.2 Methods for calculating rebates of flat-rate interest
The
issue of devising a fair formula for rebate calculations is redundant if a
limitation is put on interest charges by using daily-rate
interest calculations.
This is the method used in the Australian Consumer Credit Code – and it
effectively eliminates the need
for rebates on loans where interest was
calculated by a flat-rate method (section 9.2.2 has discussed this point in some
detail).
If such a proposal is not adopted, however, there are two
choices:
Rule of 78
Chapter 8
analysed the serious disadvantages for consumers resulting from the use of the
Rule of 78 by lenders. For these reasons,
the Ministry of Consumer Affairs
believes that New Zealand should follow the example of similar countries and
prevent lenders from
using the Rule of 78 in calculating early-repayment
rebates.
Actuarial formula
An actuarial formula provides a
more accurate and equitable calculation of the rebate on the balance outstanding
than the Rule of
78. The principle of the actuarial method is that the
borrower’s payment on ending the loan early should result in them paying
finance charges at the same rate over the shortened term as they would have done
over the full term of the loan. (See Appendix Five
for more detail on the
actuarial method.)
Provision could be made for lenders to recover any
unpaid portion of the costs in setting up the loan. Some of the possibilities
for
doing this are discussed in the next section.
9.6.3 The borrower’s liability for early repayment
The
issue here is what extra charges (if any) should the borrower have to pay for
early repayment – apart from the credit charges
still to be paid at the
date of repayment. There are three main approaches.
A full refund of
all costs
One option is to allow the consumer the right to a proportional
refund of all credit charges – including establishment fees
– paid
up to the time of repayment. This policy is followed in Canada for non-mortgage
credit.
This policy could be expected to result in lenders being
reluctant to offer long-term, fixed-rate loans. In such circumstances as
these,
it would mean that the cost of early repayment will not be borne by the borrower
repaying the loan, but instead will be borne
by all borrowers through higher
interest charges. This type of policy will therefore have undesirable costs.
An administrative charge
Lenders may want to charge an
administrative fee to cover the cost of processing the early termination of the
loan. This seems unobjectionable
in principle, and is certainly more transparent
than the current rule in the Hire Purchase Act that allows the lender to retain
10%
of the unearned interest. Such a charge is likely to be for a small amount,
but there may have to be similar provisions to the Australian
Consumer Credit
Code to the effect that any administrative costs of this kind must be
reasonable.
Compensation for the lender’s
loss
Compensating the lender for loss comes about when a borrower
makes an early repayment of a loan with a fixed-interest rate. If interest rates
at the time of repaying the loan
are lower than the interest being paid on the
loan, then the lender suffers a loss.
The Ministry believes the lender
should be able to recover this loss from the borrower. Otherwise, long-term
fixed-interest loans
could become problematic if borrowers can end a loan at
will (when interest rates change) and refinance it elsewhere.
The two
most equitable approaches appear to be:
These
rule out the current provisions in section 23 of the Hire Purchase Act and
section 81(2) of the Property Law Act.
Option 1: Prescribing a
formula for calculating lost future interest
Three common methods used by
lenders to calculate their lost interest are:
Not
all lenders will use the same method, and so a standardised formula may not suit
the different circumstances of different lenders.
Option 2: Courts (or
Disputes Tribunal) to review fees charged for early repayment
This would
be an equivalent system to what happens under the Australian Code. It allows a
Court or Disputes Tribunal to review a fee
to make sure it does not exceed a
reasonable estimate of the lender’s loss resulting from the early
repayment. This approach
accepts that it is reasonable for lenders to recover
lost “future interest” on the contract, but remains flexible about
how the lender makes the calculation.
QUESTIONS FOR SUBMITTERS ON
9.6
(a) What right, if any, should the consumer have to early repayment of a credit contract?
(b) If lenders are to be permitted to calculate interest by the flat-rate
method:
i) Should lenders be permitted to calculate rebates with the Rule
of 78?
ii) Or should lenders be required to use an actuarial
formula?
(c) What should be the borrowers liability on early
repayment?
i) No liability (i.e. a full refund of charges)?
ii) For an
administrative charge only?
iii) To compensation for the lenders loss?
(d) If consumers are liable to compensate a lender for its loss on early
repayment, what protections, if any, should be put in place
to ensure any charge
is reasonable?
GLOSSARY
Key
terms are marked in bold, with synonymous terms included below.
Accrued interest method
Simple interest in North America |
Calculates interest charges by applying an interest rate for a specific
period (usually daily or monthly) to the balance outstanding
on a loan during
that period. The interest charge is then added to the outstanding balance.
|
Actuarial Rule
|
In relation to the early repayment of a loan, a method of calculating a
rebate of precalculated interest. It calculates the present
value of future
instalments under a loan contract.
|
Advance
|
A transfer of value from lender to borrower – that is, the amount of
a loan (or loan instalment) extended to a borrower or the
cash price of a good
sold in a credit sale/hire purchase deal.
|
Annual effective rate of interest
True rate of interest |
The expression of an interest rate for a period of less than a year as an
annual interest rate – the annual “effective”
interest rate is
an exponential function of the period interest rate taking into account the
timing of loan repayments during the
year.
|
Annual finance rate
Annual Percentage Rate – APR |
A standardised calculation that incorporates interest
and other charges to show the total cost of the loan over the entire loan term. It does this by relating the amount and timing of payments to the amount and timing of advances. Also used to express the total cost of credit as an annual percentage rate. |
Annual nominal rate of interest
|
The expression of an interest rate for a period of less than a year as an
annual interest rate – the annual nominal interest
rate is found by
multiplying the period rate by the number of periods in a year.
|
Borrower
Debtor |
The person who is liable for the debt arising from a loan.
|
Consumer Credit Code
|
Australian consumer credit legislation. The Code became law in all states
in November 1996.
|
Continuing disclosure
|
Disclosure made pursuant to a revolving credit contract, at the end of each
billing period. It discloses the credit provided and the
charges incurred by the
borrower during the billing period.
|
Cost of Credit Disclosure Act (CCDA)
|
Consumer credit statute drafted by Uniform Law Conference of Canada in 1998
and expected to be adopted by all provinces.
|
Credit
|
The right granted by a lender to a borrower to defer payment of debt, incur
debt and defer its payment or purchase property and services
and defer
payment.
|
Credit Contracts Act 1981
|
Key statute that regulates the provision of credit in New Zealand
|
Daily-rate interest method
|
Calculates interest applying a daily interest rate, usually 1/365th of the
annual interest rate, to the daily outstanding balance.
|
Early repayment
|
Payment of a loan in full before its agreed term has run its course.
|
Fee
|
A specific charge made for the use of credit, which is not an interest
charge.
|
Fixed credit
Instalment credit |
Credit of a “fixed” known amount, with the amount and timing of
all payments agreed at the start of the loan.
|
Flat-rate method
Add-on interest |
The amount of interest is calculated on the original amount of the loan for
the whole term of the loan, rather than on the outstanding
balance from time to
time.
|
Grace period
|
A period under a credit contract during which interest on the outstanding
balance, or a purchase, is waived so long as the balance
or purchase price is
repaid during that period. Cf. interest free period.
|
Guarantee disclosure
|
Disclosure under the Credit Contracts Act which is required to be made to
guarantors of a credit contract.
|
Hire purchase
|
An agreement under which possession of goods is given either on the basis
of a hiring with an option to buy, or as an agreement to
purchase by
instalments. Ownership in the goods does not pass to the purchaser until payment
has been made in full.
|
Honeymoon interest rate
Low-start rate or initial interest rate |
A discounted interest rate applied for the first few periods of a loan,
which may be a marketing device to attract borrowers.
|
Initial disclosure
|
Disclosure at the time that the credit contract is first entered into (or
no later than 15 days after).
|
Interest charges
|
Charges for the use of credit; usually computed as a rate applied to the
outstanding balance from time to time, or as a proportion
of the original amount
of the loan.
|
Interest free period
|
A period during a credit contract during which the outstanding balance does
not accrue interest. Cf. grace period.
|
Lender
financier credit provider |
The party which extends credit to a borrower; or to which, under an
agreement, credit is owed.
|
Modification disclosure
|
Disclosure required after the terms of the credit contract have been
modified by the lender (although this does not refer to the lender
exercising a
power under the contract).
|
Outstanding balance
|
The total amount owing at a particular time during a credit contract.
|
Period
|
A period of time between instalments, such as monthly, daily,
semi-annually, annually etc.
|
Period rate of interest
|
A rate of interest that is applied to the outstanding balance of a loan
during a specific period.
|
Present value
|
The current “money’s worth” of an amount due in the
future. The present value is determined by discounting the amount
due by a rate
(eg the interest rate). If a sum equal to the present value was invested now at
the given rate, it would accrue to
the specified future amount at the future
time.
|
Principal
|
The amount of credit that has been extended, but not including interest or
other charges.
|
Rebate for early repayment
|
The return of a portion of the total flat-rate interest included in
a fixed loan when it is repaid early.
|
Repayment
Instalment Payment |
The amount of a payment under a loan. It is applied to interest, other
charges and the balance of the loan.
|
Request disclosure
|
Disclosure of finance information on the contract, made pursuant to the
written request of the debtor.
|
Revolving credit
Open credit Continuing credit |
A credit agreement that anticipates multiple advances and repayments
– these are made at the request of the borrower and not
according to a
fixed schedule. There will usually be a credit limit and a required minimum
monthly payment.
|
Rule of 78
|
An method used to calculate the amount of the rebate of flat-rate
interest when a fixed-term loan is repaid early.
|
Search cost
|
The time and effort spent in discovering the terms on which goods or
services are available in the market. A type of transaction cost.
|
Total cost of credit
|
The total amount that a borrower must pay for credit over the course of a
loan. It includes all interest and fees, but does not include
incidental
services or the amount borrowed.
|
Variable interest rate
|
An interest rate on a loan that may be adjusted (raised or lowered)
periodically by the lender.
|
APPENDIX ONE
The lender’s costs and how they are recovered
Lenders
incur costs in respect of any credit contract. These relate broadly to the
following:
(a) Costs directly associated with the acquisition or use of finance,
including the servicing of a lender’s borrowed funds.
(b) Setting up costs directly associated with a particular credit contract, which arise before or at the outset of the agreement. Such costs may include the following:
In effect, when advancing a $10,000 loan, the lender commences the agreement
with an outlay of more than $10,000. Some setting up
costs may be recovered by
consequent charges to the borrower to be paid at the outset of the agreement or
added to the principal
and the borrower charged interest until the costs have
been fully recovered. Others may be incorporated in the lender’s interest
rate and recovered over the life of the agreement.
(c) Other general costs arising before or at the outset of the agreement. These costs might include:
(d) Costs associated with the ongoing maintenance of a lender’s
records, including the application of repayments and interest
charges.
(e) Default costs. These are the costs that a lender incurs on default of a borrower and include:
Costs on
settlement can be further distinguished according to whether the contract was
settled early:
(f) Administration costs which would have been charged whenever the account was closed, such as:
(g) Administration costs arising on early settlement which would not arise if the loan were to run its course. For example:
However, these costs may be offset by future costs avoided, eg the
administration costs of issuing further statements and maintaining
accounts and
the removal of the risk of default.
(h) Costs involved in relending
loaned money repaid early.
(i) Lost future interest. If interest rates fall, borrowers may wish to repay
early, even if they need to refinance. Potentially,
however, if rates have
risen, lenders can re-lend at a higher rate and gain future interest, but note
that borrowers may be less
likely to settle under these conditions.
These costs can be recovered from the borrower through interest or fees,
depending on the pricing structure used by the lender. If
lenders are free to
structure their loans in anyway they please they are likely to do so as
follows:
APPENDIX TWO
“Accrued” interest
Example
one: a fixed schedule loan with interest calculated simple basis
This
example is further to Example 2 on page 18 and describes how it is calculated.
We recall that Lender X offers a $1000.00 loan
at an annual interest rate of
16.95%. The monthly rate is which is 1.412%. This rate is applied to the
outstanding balance each
month.
The term of the loan is 6 months and
instalments are $175.00 per month. The instalments can be calculated easily on a
spreadsheet[51] or financial
calculator. The following is the repayment
schedule:
Payment Interest Payment
Principal Balance
Number amount reduction outstanding
0 1000.00
1 14.12 175.00 160.88 839.12
2 11.85 175.00 163.15 675.97
3 9.54 175.00 165.46 510.51
4 7.21 175.00 167.79 342.72
5 4.84 175.00 170.16 172.56
6 2.44 175.00 172.56 0.00
The
outstanding balance at the end of the first month is calculated as
–
loan + finance charge $1,000 x 1.412% – instalment $175 =
$839.12
At the end of the second month –
$839.12 x 1.412%
– $175 = $675.97
and so on until the loan is fully repaid at the
end of the contract.
APPENDIX THREE
The finance rate: general
In
general terms a credit contract may be considered as a series of cash flows. The
outwards cash flow (from the perspective of a
lender) is the amount(s) of the
advance(s), and the inwards cash flow is the specified repayments at specified
future times, as stated
in the contract. The finance rate is that rate which
equates the present value of the amount(s) of the advance(s) to the present
value of the repayments. Some people are familiar with this concept as an
“internal rate of return”, or “discounted
cash
flow”.
To begin with some expressions and symbols for the purpose
of generating formulae for various contracts are defined. The expressions
and
terms in italics are as defined.
Advance the amount of an advance
of credit
Repayment the amount of a repayment, under the terms of a contract,
regardless of whether it represents part of the advance or a charge (as
defined
by “total cost of credit” in section 5 of the
Act)
Payment the amount of an advance or repayment
Interval the period between payments, for which an period rate is calculated, before being converted to an annual finance rate
At the amount of an advance, at time t. Any charges payable before the date on which the first advance is made shall be deemed to be made at time zero.
Rt the amount of a repayment, at time t
Formula (1)
Finally, a reminder regarding summation notation:
Denotes the sum of the sequence of values A (ie t=0)
to An (ie t=n) and is shorthand for the
expression A0 + A1 ... + An.
The General Formula for a Credit Contract
The general
formula for all credit contracts, expressing the equivalence of the values of
advances to the values of repayments, is:
Formula
(2)
This formula can be applied to any contract to determine
the finance rate when the amount and timing of advances and repayments are
known. For example:
Example 9
Consider a loan of $1,000.00
repayable by 6 monthly instalments of $175.00, due at the end of each month, and
an establishment fee
of $30.00 charged at the commencement of the contract. The
equation for determining the finance rate for the contract becomes:
1,000.00 x v0 = 30.00 x v0 + 175.00 x
v1 + 175.00 x v2 ... + 175.00 x
v6
Given the amounts and timing of the advance(s) and
the repayments, the evaluation of v in such a formula will give the
discount factor applied in each period. In Example 9, v1 is
equal to 0.9774. Restating formula (1) as:
we can calculate the period rate, a, as
0.02312.
However, to calculate a or v, requires knowledge
of one or the other variable. If neither is known, to make the calculation you
must guess a or v, calculate the present values of each repayment,
check if they add up to the loan, if not, adjust your guess, and start again.
This
process is called iteration and is likely to be performed by a
computer.
Example 9 continued
The operation of the finance rate for this
contract can be illustrated by the following amortisation table. The finance
charge is
calculated by multiplying the balance outstanding by
0.02312.
Payment Finance Payment
Principal Balance
Number charge amount reduction outstanding
0 30.00 30.00 970.00
1 22.43 175.00 152.57 817.43
2 18.90 175.00 156.10 661.33
3 15.29 175.00 159.71 501.62
4 11.60 175.00 163.40 338.22
5 7.82 175.00 167.18 171.04
6 3.96 175.00 171.04 0.00
The
finance rate for a contract is defined in section 6 and the First Schedule of
the Act as a nominal rate, expressed as a percentage
rate per annum. The finance
rate, “fr”, can therefore be determined by the formula:
Formula (3) fr = a x m x 100 |
In Example 9, the finance rate is 27.75%, which would normally be rounded to
27.7%.
The finance rate under formula (2) can be very difficult to
determine, even with the aid of a computer. Under complex contracts that
may be
the only way of determining the finance rate. However, under certain repayment
conditions, the general formula may be simplified
somewhat:
Formula (4) |
This formula applies to the situation of a contract with equal instalments
(R) due at the end of equal intervals, with an up-front fee
(Ro).
The operation of the finance
rate
The concept of the finance rate bears no relation to the manner
in which interest and fees are calculated and charged under a loan.
Using the
amounts of the specified advance(s) and repayments, the finance rate represents
an equivalent interest rate under the contract
(taking into account all elements
of the cost of credit) as if the interest was the only charge.
The
finance rate and the Credit Contracts Act
The forgoing discussion
considered the mathematical concept behind the finance rate. Now we discuss its
relationship with the Credit
Contracts Act.
The finance rate is defined in section 6(1):
(1) In this Act, the term “finance rate”, in relation to a credit contract, means the rate that expresses the total cost of credit as a percentage per annum of the amount of credit and that is—
(a) The annual finance rate, as defined in the First Schedule to this Act, for that contract (which may be rounded to the nearest quarter of one percent); or
(b) A rate that is correctly derived or calculated from tables, or in
accordance with a formula, prepared and published by the Government
Actuary for
the purposes of giving the annual finance rate (as so defined) for that kind of
contract.
Subsections (1A) and (2) deal with contracts where some of the
variables are unknown.
The Act does not specifically prescribe how the
finance rate should be calculated, however, the formula in the first schedule to
the
Act makes it possible to confirm that the finance rate has been calculated
correctly. The schedule states:
A rate r% is the annual finance rate of a credit contract if—
(a) In respect of each period between instalments, an amount is obtained by
multiplying the outstanding balance during the period
by a fraction a
where—
and—
n is 365 divided by the number of days in the period—
(which amount forms part of the outstanding balance during the next succeeding period); and
(b) The total of the outstanding balance during the final period between
instalments and the amount obtained in respect of that period
pursuant to
paragraph (a) of this clause equals the amount of the final
instalment.
Thus, we can confirm that 27.75% is indeed the finance rate
for the loan in Example 10:[52]
Example 10
Following the steps specified in the first
schedule:
(A) First period:
We must work out the outstanding balance
(see cl 1(1) of the First Schedule which defines “outstanding
balance”). This
is the amount to be advanced immediately before the period
commences - $1000 - $30 establishment fee = $970.00.
r = 27.75%
and n = 12 (for one calendar month, cl 3(c) of schedule).
We then
multiply the outstanding balance by a fraction a to calculate the finance
charge of:
(B) Second period
The
outstanding balance is now $970 + $22.43 – $175.00 = $817.43. The
outstanding balance is again multiplied by the fraction
a to calculate
the finance charge for the second period:
(C)
Subsequent periods
This process is repeated for the next 4 periods. For the
final period we have a balance outstanding of $171.04 and a finance charge
of
3.96.
If our earlier calculation that the finance rate is 27.75% is to be
confirmed, then the sum of the outstanding balance during the
final period
between instalments - $171.04 – and the amount of the finance charge for
the period (pursuant to cl 2(a)) - $3.96
– will equal the amount of the
final instalment - $175.00. In our example the sum is $175.00. Our finance rate
of 27.75% is
therefore correct.
The process as outlined above
corresponds with the process outlined in Example 9 which was based on the
general formula (formula (2))
for a credit contract.
Limitation to
the general formula and formula (4)
However, both formulas only apply
to loans with the following features: regular payment periods and no skipped
payments. Neither formula
deals with irregular payment periods; for loans with
this feature the result is uncertain. An example is a hire purchase contract
with a payment holidays: Term = 36 months
Payment frequency =
monthly
First payment due at end of 13th month (ie. a 12 month payment
holiday).
The Act is difficult to interpret under this scenario. Lenders
are likely to calculate the finance rate assuming 12 periods with a
zero
repayment.
APPENDIX FOUR
Nominal and effective interest rates
There are different models for expressing the annual interest rate under the “accrued interest” method. Generally, they fall into two categories: the nominal rate of interest and the effective rate of interest. Both models deal with the following issues:
However, there are important
differences which are summarised below.
The nominal annual rate of
interest
This is the model upon which the Credit Contracts Act is
based. It represents the relationship between the annual interest rate and
the
rate for a period less than a year as linear:
Formula (5) r = i x m |
where r is the annual rate, i is the rate for a period between
instalments (a “fractional period”) and m is the number of
such fractional periods in a year. A monthly rate of 1% translates into a
nominal annual rate of 12%.
The effective annual rate of
interest
The disclosed annual rate allows for the timing of payments
during a year. The relationship between the rate for a period and the
annual
rate is exponential:
Formula (6) r = ((1 + )m ) – 1 x 100 |
A monthly rate of 1% would translate into an effective annual rate of
12.68%.
APPENDIX FIVE
Early repayment: the Rule of 78 and the actuarial method
The
Rule of 78
The Rule of 78 is a method of calculating the amount
required when a borrower wishes to pay off a loan. It is so called because 78
is
the sum of the digits from 1 to 12 (the number of months in a year). Hence its
alternative name, the “sum of the digits
method”.
Thus:[53]
1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 + 9 + 10 + 11 + 12 = 78
Where a loan is being paid off by equal instalments, the principal is
being progressively reduced over the length of the contract.
Interest on the
reducing balance therefore also reduces progressively.
In a 12-month
contract, the Rule of 78 allocates the cost of credit (ie combined interest and
other fees) to each instalment in the
following manner:
12/78 of
the cost of credit is allocated to the first instalment
11/78 to the
second instalment
10/78 to the third instalment
and so on to
–
1/78 to the final instalment
For a contract other than
for 12 months, the allocation is adjusted accordingly. For example, in a 6-month
contract the cost of credit
is allocated as 6/21 to the first instalment, 5/21
to the second instalment etc [1 + 2 + 3 + 4 + 5 + 6 = 21].
The formula
for the rebate to be applied to the sum of the remaining instalments
is:
Formula (7)
But for explanatory purposes, we will use:
Formula (7a)
Where X is the
rebate
C is the cost of credit under the contract
n is the
original number of months under the contract
m is the number of
complete months remaining under the contract
A lender calculating a
rebate under the Hire Purchase Act may multiply R by 90% because it is entitled
to 10% of the precalculated
interest.
Now we return to Example 6 on page
48
Example 11
Amount advanced: $8,000.00
Term: 1 year, 12
monthly instalments.
Monthly instalment: $800.00
Interest rate: 20% flat
rate
Cost of credit $1,600.00
The calculation is as
follows:
Here, we assume the contract is a
hire purchase contract and multiply the rebate by 90%.
Why the Rule of
78 produces anomalies
The Rule of 78 is only an approximation of the
proportion of cost of credit charges that relate to each instalment. Its premise
that
the proportion of repayments representing interest under a loan will fall
by the same amount with every instalment is overly simplistic
and overestimates
the interest in the early stages of a loan. The actual relationship between the
proportion of interest and principle
within a repayment is actually a more
complex exponential relationship where the amount of interest falls relatively
slowly in the
early stages of the loan and then progressively more quickly.
In a case such as Example 8 (page 48), the interest charges attributed
to the early stages of the loan by the Rule of 78 are larger
than the
repayments. Under the Rule, therefore, the borrower’s payments are not
sufficient to cover the interest being added
to the balance each month and the
settlement figure increases rather than decreases.
THE ACTUARIAL RULE
The actuarial formula for calculating the
amount to extinguish a credit contract is similar to that for the calculation of
a finance
rate at the commencement of the contract, except that it takes into
account only the prospective repayments still outstanding under
the
contract.
The general actuarial formula, for the cost of extinguishing a
credit contract, at the due date of the next repayment, is:
Formula (8)
where Cz is the cost of early repayment of a contract with
z repayments outstanding
Rt includes only future repayments
under the contract
Where a loan is repayable by equal
instalments due at equal intervals, this formula can be simplified in a similar
manner to that
for determining the finance rate under a contract,
ie
Formula (9)
Formula (9) calculates the value of future repayments at the due date of the
next repayment. In other words the repayments are due
at the beginning of each
period, rather than at the end. The present value of each repayment is
effectively multiplied by (1+ a).
Formulae (8) and (9) calculate the cost
at the due date of the next instalment. Therefore they might effectively allow
additional
interest to the lender on the outstanding debt for, on average, half
of the period between instalments. For contracts repayable monthly
or more
frequently, this might be quite reasonable and could be considered as some
compensation to the lender for the early termination
of an agreed contract, at
the wish of the debtor. If a borrower wished to repay a loan at the due date of
the next instalment, as
might frequently occur, there would be no additional
interest.
If the due date of the next instalment is some time in the
future, say more than a month, it could be reasonable to allow some further
discount in the formula, ie:
Formula (10)
where p is the fraction of a year from the settlement date to the due
date of the next repayment
Formulae (8) to (10) could be evaluated
directly by inserting the relevant values of the variables into either an
electronic calculator
or a computer application. Alternatively tables could be
prepared to give the present value of the remaining repayments, to be multiplied
by the amount of the instalment. These tables would be quite extensive because
they would need to cover a wide range of finance rates,
the range of remaining
repayments, and different frequencies of repayments.
This section does
not deal with any past repayments which may not have been made on their due
dates, nor any penalties or penalty
interest on such sums.
This section
does not include any allowance for any costs which might be incurred by the
lender upon early repayment of a credit contract.
Example 12
Early Repayment of a Credit Contract
Loan $8,000 Finance rate per annum 35.074% Flat interest rate 20% Finance rate per period 2.923% Number of repayments 12 Number of repayments per annum 12 Cost of credit $1600 Repayment instalment $800 |
|||||
Repayments made
|
Early Repayment Actuarial Method
|
Early Repayment Rule of 78 (100%)
|
Difference
|
Early Repayment Rule of 78 (90%)
|
Difference
|
0
|
8,233.83
|
8,246.15
|
(12.33)
|
8,381.54
|
(147.71)
|
1
|
7,651.11
|
7,671.79
|
(20.69)
|
7,784.62
|
(133.51)
|
2
|
7,051.36
|
7,076.92
|
(25.57)
|
7,169.23
|
(117.87)
|
3
|
6,434.07
|
6,461.54
|
(27.46)
|
6,535.38
|
101.31
|
4
|
5,798.75
|
5,825.64
|
(26.89)
|
5,883.08
|
(84.33)
|
5
|
5,144.86
|
5,169.23
|
(24.37)
|
5,212.31
|
(67.45)
|
6
|
4,471.85
|
4,492.31
|
(20.46)
|
4,523.08
|
(51.23)
|
7
|
3,779.17
|
3,794.87
|
(15.70)
|
3,815.38
|
(36.21)
|
8
|
3,066.25
|
3,076.92
|
(10.67)
|
3,089.23
|
(22.98)
|
9
|
2,332.49
|
2,338.46
|
(5.97)
|
2,344.62
|
(12.13)
|
10
|
1,577.28
|
1,579.49
|
(2.21)
|
1,581.54
|
(4.26)
|
11
|
800
|
800
|
0
|
800
|
0
|
12
|
–
|
|
|
|
|
APPENDIX SIX
Disclosure form required in US law
[1] See also E Lanyon, “Hybrid consumer credit products in the electronic age – a challenge for regulators”, Paper presented to the International Association for Consumer Law Biannual Conference, Helsinki, Finland, May 1999.
[2] For example, through the Hire Purchase (Economic Stabilisation) Regulation 1957.
[3] See the study by the Consumers’ Institute, (July 1992) “Balancing the cards: Best deals with credit cards”. Consumer, 306, 12-15.
[4] Adult Literacy in New Zealand: Results from the International Adult Literacy Survey, Ministry of Education (Undated – survey conducted March 1996).
[5] See R Cole and L Mishler, (1998). Consumer & Business Credit Management. (11th Ed) Boston: Irwin McGraw-Hill, at 86.
[6] The Contracts and Commercial Law Reform Committee stated that “the cardinal principle of our proposals regarding disclosure is that information should be provided in a form enabling the public to ‘shop for credit’”, Credit Contracts: Report of the Contract and Commercial Law Reform Committee, February 1977, at 101 (para 8.08).
[7] J Landers and R Rohner, (1979). “A functional analysis of Truth in Lending” UCLA Law Review, 26, 711-752.
[8] Elia v Commercial & Mortgage Nominees Ltd [1988] NZHC 449; (1988) 2 NZBLC 103,296 Gault J commented that the definition of incidental services was “unclear in scope”.
[9] J Farrar, (1985) Butterworths Commercial Law in New Zealand, Wellington: Butterworths, at 253.
[10] Including all the “inevitable” costs of credit may, however, assist the consumer to choose between obtaining credit to pay for a product or paying cash (or even deferring the purchase until they can afford to pay cash).
[11] As a result of the decision in South Pacific Credit Card Ltd v Kay [1986] 2 NZLR 578; the issue was whether an American Express card service was a credit contract. In his reasoning, Ellis J disagreed with the analysis of one of the authors of the Contracts and Commercial Law Reform Committee report on credit contracts. D Dugdale had submitted that the annual fee on an American Express Card was not an incidental service and therefore an American Express Card service should be regarded as a credit contract ((1981). The Credit Contracts Act 1981, at 22). Although the primary reason for the decision was that the annual fee on a charge card was an incidental service was because the literature provided to card holders was a benefit, it was also relevant to Ellis J’s reasoning that the fees were flat charges and did not depend on the amount of credit provided. The effect of this decision is that charge card services are not credit contracts.
[12] In Elia v Commercial & Mortgage Nominees Ltd supra, Gault J held that procuration fees are a cost of credit; this case was distinguished in Bagget v Samuel (1990) 3 NZBLC 101, 534 [per Master Gambrill] where it was held that such fees were incidental and therefore not part of the cost of credit. The most important point of distinction appears to be that in the latter case the fees were paid separately and not deducted from the advance under the contract.
[13] It is often suggested that insurance products offered by lenders in connection with loans are overpriced, in that borrowers could get equivalent protection less expensively through an independent insurer. That may be so. But including the premium for insurance offered by the lender in the annual finance rate for a loan does not help the borrower compare the cost of the loan with the cost of other loans, nor does it help the borrower compare the cost of the insurance offered by the lender with the cost of comparable insurance from other sources.
[14]The argument in this section and examples 5 and 6 are based on R Bowes, (1997). “Annual Percentage Rate Disclosure in Canadian Cost of Credit Disclosure Laws” Canadian Business Law Journal, 29(2), 183-217.
[15] As Bowes points out, “choose the smallest loan and pay it off as quickly as possible” is equally useful as a rule of thumb and would probably be recommended by most budget advisors; however, it is also not difficult to think of situations where a consumer should borrow a higher amount and pay it off slowly (perhaps to maintain a minimum savings balance).
[16] See Landers and Rohner, supra.
[17] Landers and Rohner argue that to comparison shop in these circumstances would be irrational, supra, at 717.
[18] CCA, s. 36.
[19] Some jurisdictions require the calculation of an “annual percentage rate” in these circumstances – for example, Canada and the countries of the European Union.
[20] The complexity of the Credit Contracts Act has long been acknowledged. When the Bill was debated this was a key focus, and Sir Geoffrey Palmer has been often quoted to the effect that one needed to wear a wet towel around one’s head to read it. Professor McLauchlan describes the Act as “difficult and highly technical” but considers calls for brief and simple regulation to be “highly unreal” (“Contract and Commercial Law in New Zealand” (1984). New Zealand Universities Law Review, 11, 36-65). For equally complex consumer credit regulation, see the UK Consumer Credit Act 1974 and its associated regulations or the US Regulation Z.
[21] E.g. Van Zijl “Defining the finance rate in the Credit Contracts Act”, (May 1983). The Accountants Journal, cited in Consumers’ Institute The Reform of Consumer Credit in New Zealand, August 1998 pp 42-44, which endorsed this criticism. See also Ministry of Consumer Affairs, (1988). Consumers and Credit; and S Baird (1999). “Consumer Credit Reform” New Zealand Law Journal, at 95-96.
[22] See J Lee and J Hogarth (1999). “The price of money: Consumers’ understanding of APRs and contractual interest rates.” Journal of Public Policy and Marketing. 18(1), 66-76, and the references cited therein; for earlier studies see Landers and Rohner, supra.
[23] When asked which of four statements best explained the APR, only 11% of respondents chose the most appropriate answer: “you can use it to compare credit deals”. 53% chose “it tells you how much interest will be charged”, 25% did not know and the remainder chose incorrect answers. This indicated a low level of consumer awareness of the function of an APR. (Office of Fair Trading, Consumers’ Appreciation of ‘Annual Percentage Rates’, Research Paper 4, June 1994.)
[24] Consumers’ Institute supra n. 21,at 42-44.
[25] Ministry of Consumer Affairs, supra n. 21, at 32-33, 39.
[26] Code of Banking Practice, Second Edition November 1996, clause 3.2.
[27] The Act is available on the Uniform Law Conference of Canada website at www.law.ualberta.ca/alri/ulc/acts/eccda.htm; it is accompanied by commentary at www.law.ualberta.ca/alri/ulc/acts/eccdcom.htm.
[28] This report can be downloaded at www.federalreserve.gov/boarddocs/RptCongress/tila.pdf.
[29] See Bowes, supra, and the commentary that accompanies the Act for background, supra. There is no evidence that the Consumer Measures Committee seriously considered adopting the Alberta Law Reform Institute draft Act. The policy proposals that underpin the Cost of Credit Disclosure Act are contained in an Agreement for Harmonization of Cost of Credit Disclosure Laws in Canada, Drafting Template, June 1998. This document is sparse on discussion and is perhaps a summary of existing consumer-credit policy in Canada, as reflected by the different provincial Acts, rather than an attempt at a new approach to disclosure requirements in consumer-credit legislation.
[30] The Act was reviewed in 1994: Office of Fair Trading, Consumer Credit Deregulation: A review by the Director General of Fair Trading of the scope and operation of the Consumer Credit Act 1974, June 1994.
[31] Much of this section is based on A Duggan and E Lanyon, (1999) Consumer Credit Law. Sydney: Butterworths.
[32] See for example G Lekakis, “Breakthrough in fight for ‘real home rates’”. The Australian Financial Review. 4 October, 1999, p 5; H van Leeuwen, “NSW leads way in home loan consumer protection”. The Australian Financial Review. 21 October, 1999, p 10.
[33] Under section 81(2) Property Law Act 1952.
[34] Office of the Banking Ombudsman, Annual Report 1998-1999, at 5.
[35] The rules for calculating the outstanding balance are in the First Schedule of the Cost of Credit Disclosure Act.
[36] Use of the rule is inconsistent with section 26 of the Consumer Credit Code, which limits interest charges recovered by lenders.
[37] Truth in Lending Act §1615 (US).
[38] Office of Fair Trading, supra.
[39] This was the position in Australia under the Credit Act 1984 (NSW), which has been repealed by the Uniform Consumer Credit Code.
[40] Prices Surveillance Authority, Report No. 45, October, 1992, cited in E Lanyon, (1997). “Cassandra’s Curse: Disclosure Under the Australian Consumer Credit Code”, Consumer Law Journal, 5(6), 178-191.
[41] For a modern example, see the Canadian Cost of Credit Disclosure Act s. 2.
[42] See also the Report of the Contracts and Commercial Law Reform Committee, at 151-155.
[43] This section is supplemented by clause 17 of the accompanying Consumer Credit Regulations.
[44] That is, the annual interest rate divided by 365.
[45] R. Cole and L. Mishler, supra, at 47, 86.
[46] E Lanyon, supra, note 40, at 188-189.
[47] This has important implications for early repayment of a credit contract if lenders disguise their interest charges as fees. Lenders that load fees onto the front-end of a credit contract, by deducting the value of the fee from the amount of the advance, will receive immediate benefit for the fee. If a borrower repays the loan early, the lender retains the full fee. If the fee was a disguised interest charge – that is, not related to an actual cost – the lender is effectively receiving unearned interest from the early repayment. Such a practice would violate the principle that interest should not be generated in advance and could nullify any early repayment right the borrower has.
[48] See note 32.
[49] Ministry of Consumer Affairs, supra, n 21.
[50] This is because it is difficult for the seller to gain the full benefit of the information due to consumers free-riding on those who pay for the information. See A Schwartz and L Wilde, (1979). “Intervening in Markets on the Basis of Imperfect Information: A Legal and Economic Analysis” University of Pennsylvania Law Review, 127, 630-682.
[51] The formula on a Microsoft Excel spreadsheet is simply [=PMT(0.0141,6,-1000,0,0)]
[52] This example is similar to that in Gault on Commercial Law, Brookers: Wellington, at 5-29 to 5-31.
[53] Note: A quick way to sum any
string of digits is:
where n is the number of digits
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