Luke Evans

FCA update on Covid-19 and its impact on mortgage repossessions




Following the publication of further information from the FCA, Fieldfisher property disputes specialist Luke Evans sets out key points for lenders looking to enforce security against defaulting borrowers.

On 2nd June 2020, the regulator published updated guidance on how lenders should treat mortgage borrowers whose ability to make repayments has been affected by the Covid-19 lockdown. 

As with its previous guidance, the FCA's priorities continue to be the protection of borrowers and enabling them to comply with the government's edicts on social distancing and self-isolation. 

Consequently, the new guidelines state that lenders should not commence or continue any repossession proceedings against any borrower before 31 October 2020, extending the moratorium against repossessions to a period of seven months.   
          
This raises a number of questions for lenders, such as:

1. Can I commence possession proceedings against a borrower due to an event of default?

While the government is taking steps to lift the lockdown measures, the priority remains that borrowers do not lose their homes and are able to comply with the current guidance on social distancing and self-isolation. 

As such, the moratorium on possession proceedings continues to apply to all mortgage borrowers at risk of repossession, whether their incomes are affected by Covid-19 or not. 

2. Can I enforce a possession order obtained before the Covid-19 pandemic?

The guidance states that even where a possession order has already been obtained by a lender, it must not be enforced while the current guidance continues to apply (i.e. before 31 October 2020).

This can be exceedingly frustrating for lenders that obtained possession orders prior to the lockdown and for reasons entirely unconnected to the pandemic, but should be complied with, nevertheless.

3. Am I able to continue to charge interest on the outstanding loan?

Yes. The information issued by the government and FCA permits lenders to continue to charge interest on a loan, plus any fees and other charges, in accordance with the terms of the loan agreement.

4. Am I bound by the government and FCA's guidance?

To meet the challenges Covid-19 could pose to borrowers, the FCA has been clear that it expects all regulated mortgage lenders and administrators to comply with its guidelines. 

Unregulated companies, that are technically out of the FCA's scope and which make decisions that affect mortgage borrowers, are expected to adopt this guidance on a voluntary basis as an appropriate response.

5. What are the consequences of non-compliance?

Strict adherence to the government and FCA guidance is strongly recommended. 

The FCA has said it will consider the extent to which a lender has (or has not) adopted this guidance in assessing whether those companies, or senior individuals within those firms, are fit and proper as part of any future application for authorisation. 

In any event, given that the courts have generally followed the FCA's previous instructions and stayed all possession proceedings until the end of June 2020, the courts are likely to implement extending Practice Direction 51Z to bring the rules in line with the FCA's updated guidance.

6. How long are these measures going to be in place?

In light of the unprecedented circumstances surrounding Covid-19, the regulator has said that its guidance will be reviewed in the next three months. 

Therefore, these measures are expected be in place until at least September (and probably until the end of October 2020). 

It is, however, possible that further relaxation of the government guidance on social distancing and self-isolation may prompt the FCA to review its guidelines to reflect the change in circumstances. 

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