Consumer Protection (Regulation of Credit Servicing Firms) Act 2015
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Amendment of section 28 of Central Bank Act 1997 (definitions (Part V)) | ||
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1. Section 28 of the Central Bank Act 1997 is amended— | ||
(a) in paragraph (c) of the definition of “money transmission service” by inserting the following after subparagraph (iii): | ||
“(iiia) a person authorised to carry on the business of a credit servicing firm,”, | ||
(b) in the definition of “regulated business” by substituting “, a debt management firm or a credit servicing firm” for “or a debt management firm”, | ||
(c) in the definition of “retail credit firm” by substituting the following for paragraph (a): | ||
“(a) a person who is a regulated financial service provider authorised, by the Bank or an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank, to provide credit in the State otherwise than under this Part, or”, | ||
(d) by inserting the following definitions: | ||
“‘credit agreement’ means an agreement whereby a creditor grants, or promises to grant, credit to a relevant borrower; | ||
‘credit servicing’, in relation to a credit agreement, means managing or administering the credit agreement, including— | ||
(a) notifying the relevant borrower of changes in interest rates or in payments due under the credit agreement or other matters of which the credit agreement requires the relevant borrower to be notified, | ||
(b) taking any necessary steps for the purposes of collecting or recovering payments due under the credit agreement from the relevant borrower, | ||
(c) managing or administering any of the following: | ||
(i) repayments under the credit agreement; | ||
(ii) any charges imposed on the relevant borrower under the credit agreement; | ||
(iii) any errors made in relation to the credit agreement; | ||
(iv) any complaints made by the relevant borrower; | ||
(v) information or records relating to the relevant borrower in respect of the credit agreement; | ||
(vi) the process by which a relevant borrower’s financial difficulties are addressed; | ||
(vii) any alternative arrangements for repayment or other restructuring; | ||
(viii) assessment of the relevant borrower’s financial circumstances and ability to repay under the credit agreement, | ||
or | ||
(d) communicating with the relevant borrower in respect of any of the matters referred to in paragraphs (a) to (c); | ||
‘credit servicing firm’ means— | ||
(a) a person (other than the National Asset Management Agency or a NAMA group entity (within the meaning of the National Asset Management Agency Act 2009 )) who— | ||
(i) undertakes credit servicing other than on behalf of a regulated financial service provider authorised, by the Bank or an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank, to provide credit in the State, or | ||
(ii) holds the legal title to credit granted under a credit agreement in respect of which credit servicing is not being undertaken by a person authorised to carry on the business of a credit servicing firm, | ||
and | ||
(b) a regulated financial service provider taken to be authorised to carry on the business of a credit servicing firm by virtue of subsection (3); | ||
‘creditor’ means a person who grants credit under a credit agreement in the course of the person’s trade, business or profession, and includes a group of such persons; | ||
‘prescribed contravention’ has the same meaning as in the Act of 1942; | ||
‘relevant borrower’ means— | ||
(a) a relevant person, or | ||
(b) a micro, small or medium-sized enterprise within the meaning of Article 2 of the Annex to the Commission Recommendation 2003/361/EC of 6 May 2003 1 but only to the extent that the credit granted to it under the credit agreement concerned was provided by a financial service provider authorised, by the Bank or an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank, to provide credit in the State;”, | ||
(e) by designating that section (as amended by paragraphs (a) to (d)) as subsection (1), and | ||
(f) by adding the following subsections: | ||
“(2) For the purposes of this Part ‘credit servicing’ does not include— | ||
(a) the determination of the overall strategy for the management and administration of a portfolio of credit agreements, | ||
(b) the maintenance of control over key decisions relating to such portfolio, or | ||
(c) taking such steps as may be necessary for the purposes of— | ||
(i) enabling the undertaking of credit servicing by another person, or | ||
(ii) enforcing a credit agreement, | ||
whether any action referred to in paragraphs (a) to (c) is taken by a person who holds the legal title to credit in respect of a portfolio of credit agreements (in this section referred to as the ‘holder’) or a person acting on behalf of the holder, provided that such action, whether taken by the holder or such person, is not taken in a manner that if it were so taken by a regulated financial service provider it would be a prescribed contravention. | ||
(3) For the purposes of this Part, a regulated financial service provider authorised, whether before or after the coming into operation of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015, by the Bank or an authority that performs functions in an EEA country that are comparable to the functions performed by the Bank, to provide credit in the State, is taken to be authorised to carry on the business of a credit servicing firm.”. | ||