Compliance: Theory and Practice in the Financial Services Industry

11D. Margin Lending

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Outline

   Definitions
   Licensing and Disclosure Requirements
   Responsible Lending Obligations
   Margin Call Obligations
   Reporting Obligations

 


Definitions

CA s764A(1) - Things that are Financial Products
Subject to subdivision D (s765A), the following are financial products for the purposes of Chapter 7: ...
(l)  a margin lending facility;

These provisions were introduced into the CA by the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009.

CA s761EA(1) - Definition of Margin Lending Facility
A margin lending facility is:
(a)   a standard margin lending facility;
(b)   a non-standard margin lending facility; or
(c)   a facility of a kind that has been declared by ASIC to be a margin lending facility under s761EA(8);
unless the facility is of a kind that has been declared by ASIC not to be a margin lending facility under s761EA(9).

 

CA s761EA(2) - Definition of Standard Margin Lending Facility
A standard margin lending facility is a facility under the terms of which:
(a)   credit is, or may be, provided by a person (the provider) to a natural person (the client);
(b)   the credit provided is, or must be, applied wholly or partly:
  (i)   to acquire one or more financial products, or a beneficial interest in one or more financial products; or
  (ii)   to repay, wholly or partly, another credit facility (within the meaning of s765A(1)(h)(i)), the credit provided under which was applied, wholly or partly, to acquire one or more financial products, or a beneficial interest in one or more financial products;
(c)   the credit provided is, or must be, secured by property (the secured property);
(d)   the secured property consists, or must consist, wholly or partly of one or more marketable securities, or a beneficial interest in one or more marketable securities; and
(e)   if the current LVR of the facility exceeds a ratio, percentage, proportion or level (however described) determined under the terms of the facility, then:
  (i)   the client becomes required to take action;
  (ii)   the provider becomes entitled to take action; or
  (iii)   another person becomes required or entitled to take action;
  in accordance with the terms of the facility to reduce the current LVR of the facility.

CA s761EA(3) provides that the "current LVR" of a standard margin lending facility at a particular time is the ratio, percentage, proportion or level (however described) that: (a) is determined under the terms of the facility; and (b) under the terms of the facility, represents a particular relationship between (i) the amount of the debt owing by the client, or credit provided by the provider, or both, under the facility at that time and (ii) the value of the secured property determined at that time under the terms of the facility.

CA s761EA(4) provides that a standard margin lending facility is "in margin call" when para (e) above applies in relation to the facility.

CA s761EA(11)(a) provides that the "limit" of a standard margin lending facility is the maximum amount of credit that may be provided by the provider to the client under the facility.

Note the requirement in (d) above that the loan be secured against marketable securities means that an unsecured loan (such as a personal loan or credit card) or a loan that is secured solely against something other than marketable securities (eg a residential or investment property) is not a margin lending facility, even if the funds are used to purchase marketable securities. Similarly, the requirement in (b) above means that if the funds obtained under a loan are used wholly for purposes other than those described in (b)(i) or (ii) (eg for the purchase of a product or service for personal, domestic or household use), the loan is not a margin lending facility, even if the security for the loan includes marketable securities. In these cases, the loans are instead regulated under consumer credit legislation.

Finally, note that references in the CR to a "margin loan", somewhat confusingly, are to a standard margin lending facility only (see the definition of "margin loan" in r1.0.02(1)).

CA s761EA(5) - Definition of Non-standard Margin Lending Facility
A non-standard margin lending facility is a facility under the terms of which:
(a)   a natural person (the client) transfers one or more marketable securities, or a beneficial interest in one or more marketable securities (the transferred securities) to another person (the provider);
(b)   the provider transfers property to the client (the transferred property) as consideration or security for the transferred securities;
(c)   the transferred property is, or must be, applied wholly or partly to acquire one or more financial products, or a beneficial interest in one or more financial products;
(d)   the client has a right, in the circumstances determined under the terms of the facility, to be given marketable securities equivalent to the transferred securities; and
(e)   if the current LVR of the facility exceeds a ratio, percentage, proportion or level (however described) determined under the terms of the facility, then:
  (i)   the client becomes required to take action;
  (ii)   the provider becomes entitled to take action; or
  (iii)   another person becomes required or entitled to take action;
  in accordance with the terms of the facility to reduce the current LVR of the facility.

According to the Explanatory Memorandum for the Bill that introduced these provisions, the definition of 'non standard margin lending facility' is targeted at type of margin loan facility used by lenders such as Opes Prime and Tricom, that caused so many issues in late 2008 when the global financial crisis began to take hold in equity markets. These structures are not based on a loan agreement, but instead use a type of securities lending agreement to achieve a similar economic outcome as a standard margin loan. The key difference, from the client’s point of view, is that in a non-standard margin loan, title to the security provided for the loan passes out of the client's hands. This feature is captured in para (a) of the definition above.

CA s761EA(6) provides that the "current LVR" of a non-standard margin lending facility at a particular time is the ratio, percentage, proportion or level (however described) that: (a) is determined under the terms of the facility; and (b) under the terms of the facility, represents a particular relationship between: (i) an amount determined at that time under the terms of the facility by reference to the value of the transferred property and any amount owing by the client to the provider; and (ii) the value of the transferred securities determined at that time under the terms of the facility.

CA s761EA(7) provides that a non-standard margin lending facility is "in margin call" when para (e) above applies in relation to the facility.

CA s761EA(11)(b) provides that the "limit" of a non-standard margin lending facility is the maximum amount of property that may be transferred by the provider to the client under the facility.

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Licensing and Disclosure Requirements

Licensing and Disclosure Requirements
•     Persons who carry on a business of advising on or providing margin lending facilities need a financial services licence authorising them to provide that service or to be an authorised representative of such a licensee.
•     If they deal with retail clients, they need:
  •     Financial Services Guide
  •     Statement of Advice for any advice given
  •     Product Disclosure Statement for any products provided or recommended
  •     To act in the best interests of the client
  •     To avoid conflicted remuneration and comply with ongoing fee requirements
  •     To warn if giving personal advice based on incomplete or inaccurate information or if giving general advice
  •     Dispute resolution systems
  •     Compensation arrangements

CR r7.1.19A explains how to work out the price for the provision of a margin lending facility, or an increase in a margin lending facility, for the purposes of s761G(7)(a) (ie the section that specifies that a product is not provided to a client as a retail client if the price for the provision of the product equals or exceeds $500,000). In the case where a new margin loan is being provided, the price is calculated based on the value of the secured property or transferred securities contributed by the client for establishing the facility. In the case where an existing margin loan limit is proposed to be increased, the price is calculated by adding: (a) the current value of any secured property or transferred securities previously contributed by a client for establishing the facility or increasing the limit; and (b) the value of any additional secured property or transferred securities contributed by the client in relation to the latest increase of the limit of the facility. This effectively treats the "equity" contributed by the client to the facility as the amount invested by the client and puts this type of facility on par with the calculation used for other investment products and services.

Any secured property or transferred securities contributed by the client that is funded by borrowings from a third party is not to be taken into consideration when working out the price of a margin lending facility (CR r7.1.19A(5)).

Despite CR r1.0.02(1) defining a "margin loan" to be a standard margin lending facility only, it would seem that r7.1.19A applies both to standard and non-standard margin loans. This is by virtue of the reference in r7.1.19A(1) to "a margin lending facility ... within the meaning of s761EA(1)" (that section refers to both standard and non-standard margin lending facilities) and the various references in r7.1.19A(3)-(5) to "transferred securities" (which only have meaning in relation to non-standard margin lending facilities).

On licensing issues, note r7.1.34(1) which provides that r7.1.34(2) does not apply to margin lending facilities (the latter provision provides that the enforcement of rights under a credit facility is taken not to be a dealing in financial products).

Also on licensing issues, in 2014, Interactive Brokers LLC, a US-based online brokerage firm, was forced to refund approximately $1.5 million in fees and commission payments to its retail margin lending customers, following an ASIC investigation that found that during the period July 2010 to August 2013, it did not hold an AFSL authorising the provision of margin loans The refunds are to be made as part of an enforceable undertaking accepted by ASIC. ASIC also held concerns that Interactive Brokers did not comply with its responsible lending obligations when issuing margin loans by not verifying customers’ financial information. Approximately 3000 retail customers took out a margin loan with Interactive Brokers during this period. See ASIC Media Release 14-336MR.

On FSG issues, note CR r7.7.08B, which modifies s942DA (the section which allows an FSG and PDS to be combined into a single document in certain circumstances) to allow a person to combine an FSG and a Credit Guide if they are a financial services licensee or an authorised representative of a financial services licensee and are required to give a FSG to a client under the CA, and if they also hold an Australian credit license or are a credit representative under the NCCPA and are required to give a Credit Guide under that Act.

On PDS issues, note the inclusion of margin lending facilities in para (db) in the definition of "relevant financial product" in s1016A(1), which has the effect that the provisions in CA s1016A relating to the use of application forms apply to margin lending facilities.

Note also CR r7.9.11C, which provides that Part 7.9 of the Act is modified in its application to a standard margin loan as set out in Part 5A of Schedule 10A.

Note further that CR r7.7.08A, which permits a combined FSG and PDS to be issued as a single document for certain simpler financial products, does not apply if the PDS is for a standard margin lending facility (r7.7.08A(1B)). The reason is that the Government wants to ensure that the consumer is provided with a short and simple PDS for a standard margin lending facility (see below), and combining the PDS with other documents is not consistent with this objective.

See also ASIC Regulatory Guide 219 - Non-standard margin lending facilities: Disclosure to investors.

ASIC Pro Forma 209 - Standard Licence Conditions for Margin Lenders
19A. The licensee must have:
(a)   at least NTA of 0.5% of the value of:
  (i)   for a standard margin lending facility - the secured property;
  (ii)   for a non-standard margin lending facility - any transferred securities,
  subject to a minimum requirement of $50,000 and a maximum requirement of $5 million; and
(b)   at least $5 million NTA at all times:
  (i)   for a standard margin lending facility where:
    (A)   the licensee holds the secured property; or
    (B)   any other person holds the secured property and that person does not have at least $5 million NTA unless they are an eligible custodian; or
  (ii)   for a non-standard margin lending facility where:
    (A)   the licensee is the transferee of transferred securities; or
    (B)   any other person is the transferee of transferred securities and that person does not have at least $5 million NTA unless they are an eligible custodian.

This condition is imposed on all licensees who are not a body regulated by APRA and are authorised to issue margin lending facilities. It is also imposed on the holders of an RSE licence from APRA if they are authorised to operate registered managed investment schemes and to issue margin lending facilities. Click here for a copy of Pro Forma 209.

CR r7.9.11D – Modified PDS Requirements
A PDS for a [standard] margin loan must:
(a)   include the information and statements mentioned in CR schedule 10C; and
(b)   be in the form mentioned in CR schedule 10C.

The modified PDS requirements for standard margin loan facilities in CR schedule 10C are quite prescriptive. For example, the length of a PDS (including any title page, contents or matter in writing that is applied, adopted or incorporated by the PDS) for must not exceed: (a) 4 pages if it is printed on A4; (b) 8 pages if it is printed on A5; or (c) 12 pages if it is printed on DL. The minimum font size for text in the PDS is 8 points for the name, address, ABN, ACN and AFSL of the person giving the PDS and 9 points for all other text.

The PDS must include the following sections, which must be numbered and titled as follows:

1. About [name of provider of the margin loan] and [name of margin loan product]

2. Benefits of [name of margin loan product]

3. How [name of margin loan product] works

4. What is a margin call?

5. The risk of losing money

6. The costs

7. How to apply.

The PDS may include additional sections after sections 1 to 7 and may include other information, provided it does not contravene the limitations on length mentioned above. The regulations contain further requirements as to what can and can't be included in each section mentioned above.

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Responsible Lending Obligations

CA s985E(1) - Requirements Before Providing Facility
A financial services licensee (the provider) must not:
(a)   issue a margin lending facility to a retail client; or
(b)   increase the limit of a margin lending facility that was issued to a retail client;
on a day (the critical day) unless the provider has, within 90 days (or other period prescribed by the regulations) before the critical day:
(c)   made an assessment that:
  (i)   is in accordance with s985F; and
  (ii)   covers a period in which the critical day occurs; and
(d)   made the inquiries and verification in accordance with s985G.

CA s985E(1) is a civil penalty provision.

CA s985E(2) provides that, for the purposes of (b) above, the limit of a standard margin lending facility is taken not to be increased if the increase in the limit results from an increase in the value, determined under the terms of the facility, of the secured property under the facility and the increase in the value of the secured property does not result from the client contributing additional property to the secured property (ie the client can borrow more simply because the market value of the secured property under the facility has risen).

CR r7.8.08A provides, however, that the limit of a margin lending facility is taken to be increased, despite s985E(2), if: (a) the increase is a result of a contribution of further secured property or transferred securities that occurs without the prior knowledge or agreement of the provider; (b) the provider permits the increase to continue; and (c) the increase is no more than 5% of the current limit of the margin lending facility. In these situations, s985E(1) is modified so that 'before the critical day' is replaced by 'after the critical day'.

CR r7.8.08A addresses the situation where a margin loan borrower, without informing the lender in advance, purchases shares or other financial products and gives instructions to settle the trade through the margin lending facility where that would otherwise breach the facility's credit limit. Rather than failing the trade on the basis that no assessment of unsuitability had been done for the credit limit increase, it was suggested that a mechanism should be introduced allowing the margin lender to settle the trade but subject to the requirement to conduct the unsuitability assessment within a certain period of time thereafter. CR r7.8.08A achieves this by providing that where a credit limit increase occurs through a unilateral contribution of additional security by the borrower without the prior knowledge or agreement of the lender, and where the increase is no more than 5% of the credit limit, the unsuitability assessment may be conducted up to 90 days after the limit increase occurs. If the unsuitability assessment concludes that the limit increase is unsuitable, then the lender has to take steps to reduce the outstanding loan amount back to within the previous credit limit within 90 days of the assessment being made (r7.8.08A(7)). Only one such limit increase is permitted while an unsuitability assessment is outstanding (r7.8.08A(5)), although multiple increases on a single day are treated as a single increase for these purposes (r7.8.08A(3)).

CR r7.8.08B exempts margin lenders from the requirement to make an unsuitability assessment if the margin loan is a standard margin lending facility that is wholly non-recourse to the client and that meets certain other requirements.

CA s985F - Assessment of Unsuitability
For the purposes of s985E(1)(c), the provider must make an assessment that:
(a)   specifies the period the assessment covers; and
(b)   assesses whether the margin lending facility will be unsuitable for the retail client if the facility is issued or the limit is increased in that period.

The note to s985F states that the provider is not required to make the assessment if the margin lending facility is not issued or the limit is not increased. The Explanatory Memorandum for the Bill that introduced this provision said that this was considered to be appropriate as the misconduct that is intended to be addressed by this provision is clients being placed into margin loans that may be unsuitable for them. If the loan is not provided, then there is no risk of such harm affecting the client.

CA s985J entitles clients to request the provider of a margin lending facility to provide them with a written copy of their assessment of unsuitability up to 7 years after the loan is issued or the limit increased. If the request is made before the loan is issued or the limit increased, then the copy must be provided before issuing the facility or increasing the limit. If the request is made within 2 years after the loan is issued or the limit increased, the copy must be provided within 7 business days. If the request is made between 2 and 7 years after the loan is issued or the limit increased, the copy must be provided within 21 business days. The copy of the assessment must be given to the client without charge.

CA s985G(1) - Reasonable Enquiries to be Made
The provider must, before making the assessment:
(a)   make reasonable inquiries about the retail client’s financial situation;
(b)   take reasonable steps to verify the retail client’s financial situation;
(c)   make any inquiries prescribed by the regulations about any matter prescribed by the regulations; and
(d)   take any steps prescribed by the regulations to verify any matter prescribed by the regulations.

CA s985G(3) provides that, despite s985G(1), if: (a) a financial services licensee that is authorised to provide financial product advice in relation to margin lending facilities has prepared a statement of advice for the retail client; (b) the statement of advice was prepared no more than 90 days before the critical day; (c) the statement of advice recommends that the retail client acquire the particular margin lending facility or the limit of the particular margin lending facility be increased (as the case may be); (d) the limit of the facility, or the increase in the limit of the facility, is not greater than the limit, or the increase in the limit, recommended in the statement of advice; and (e) the statement of advice includes the information that was used for the purposes of preparing the statement of advice, then the provider is not required, for the purposes of s985G(1)(b) or (d), to verify that information.

This effectively allows a margin lender to rely on the verifications undertaken by a financial adviser who recommends to their client in a statement of advice that they take out the loan with the lender.

CR r7.8.09 - Prescribed Reasonable Enquiries
The following inquiries about a client are prescribed for the purposes of s985G(1)(c):
(a)   reasonable inquiries as to whether the client has taken out a loan to fund the secured property or transferred securities contributed by the client for establishing the margin lending facility (ie is "double gearing");
(b)   if a loan to fund the secured property or transferred securities contributed by the client for establishing the margin lending facility has been taken out - reasonable inquiries as to whether the security for the loan includes the primary residential property of the client;
(c)   if there is a guarantor for the margin lending facility - reasonable inquiries as to whether the guarantor has been appropriately informed of, and warned about, the risks and possible consequences of providing the guarantee;
(d)   reasonable inquiries as to the amount of any other debt incurred by the client;
(e)   any other matter that ASIC has specified in a legislative instrument.

A statement of advice issued by a licensee/authorised representative in relation to a margin lending facility, or a margin lending facility whose limit is proposed to be increased, must include the results of the enquiries outlined in r7.8.09 (see rr 7.7.09AA and 7.7.09BA).

CA s985H(1) and (2) - When Facility Must be Assessed as Unsuitable
The provider must assess that the margin lending facility will be unsuitable for the retail client if, at the time of the assessment, it is likely that:
(a)   if the facility is issued or the limit increased in the period covered by the assessment, and the facility were to go into margin call, the retail client:
  (i)   would be unable to comply with the retail client’s financial obligations under the terms of the facility; or
  (ii)   could only comply with substantial hardship; or
(b)   if the regulations prescribe circumstances in which a margin lending facility is unsuitable - those circumstances will apply to the margin lending facility if the facility is issued or the limit increased in the period covered by the assessment.

CA s985H(1) is a civil penalty provision.

The note to s985H(1) states that even if the margin lending facility will not be unsuitable for the retail client under (a) or (b) above, the provider may still assess that it will be unsuitable for the retail client for other reasons.

CA s985H(3) provides that for the purposes of determining whether the margin lending facility will be unsuitable, only information that satisfies both of the following is to be taken into account: (a) the information is about the retail client’s financial situation, or any other matter prescribed by regulations under s985G(1)(c) or (d); and (b) at the time of the assessment, the provider had reason to believe that the information was true or would have had reason to believe that the information was true if it had made the inquiries or verification under s985G.

CR r7.8.10 - Prescribed Circumstances that are Unsuitable
For s985H(2)(b), a margin lending facility, or a margin lending facility whose limit is proposed to be increased, is unsuitable for a retail client if the client:
•     is, on an ongoing basis, unable to be contacted by any of the usual means of communication; and
•     has not appointed an agent to act on the client’s behalf.

 

CA s985K(1) and (2) - Prohibition Against Providing Unsuitable Facilities
The provider must not:
(a)   issue the margin lending facility to the retail client; or
(b)   increase the limit of the margin lending facility that was issued to the retail client;
if the facility is unsuitable for the retail client, that is to say, if, at the time it is issued or the limit is increased:
(c)   it is likely that, if the facility were to go into margin call, the retail client:
  (i)   would be unable to comply with the retail client’s financial obligations under the terms of the facility; or
  (ii)   could only comply with substantial hardship; or
(d)   if the regulations prescribe circumstances in which a margin lending facility is unsuitable - those circumstances apply to the margin lending facility.

CA s985K(1) is a civil penalty provision. Failure to comply is also a criminal offence punishable by a fine of up to 100 penalty units and/or 2 years jail for individuals, and a fine of up to 500 penalty units for a body corporate.

Again, s985K(3) provides that for the purposes of determining whether the margin lending facility will be unsuitable, only information that satisfies both of the following is to be taken into account: (a) the information is about the retail client’s financial situation, or any other matter prescribed by regulations under s985G(1)(c) or (d); and (b) at the time the margin lending facility is issued or the limit is increased, the provider had reason to believe that the information was true or would have had reason to believe that the information was true if it had made the inquiries or verification under s985G.

CA s985K(5) also provides that, for the purposes of (b) above, the limit of a standard margin lending facility is taken not to be increased if the increase in the limit results from an increase in the value, determined under the terms of the facility, of the secured property under the facility and the increase in the value of the secured property does not result from the client contributing additional property to the secured property (ie the client can borrow more simply because the market value of the secured property under the facility has risen).

The regulations may prescribe particular situations in which a margin lending facility is taken, despite s985K(2), not to be unsuitable for a retail client (s985K(4)). Hence ...

CR r7.8.10A - Prescribed Circumstances that are not Unsuitable
For s985K(4), a margin lending facility is taken not to be unsuitable if:
•     if:
  •     an assessment of unsuitability was undertaken in accordance with the Act; and
  •     the assessment reasonably concluded that the margin lending facility is not unsuitable; or
•     if a person is exempt under CR r7.8.08B (non-recourse facilities) from the requirement to make an assessment of unsuitability in relation to the margin lending facility.

There are situations where a margin lending facility may turn out to be unsuitable, in spite of the best efforts of the provider in conducting the unsuitability assessment. In such a situation it would clearly be unreasonable to penalise the lender on the grounds of having provided an unsuitable margin lending facility. The effect of this regulation is that the lender will be taken not to have breached the law, provided the original unsuitably assessment was conducted in accordance with the relevant provisions in the Act.

As mentioned above, CR r7.8.08B exempts margin lenders from the requirement to make an unsuitability assessment if the margin loan is a standard margin lending facility that is wholly non-recourse to the client and that meets certain other requirements. This regulation also deems the loan not to be unsuitable.

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Margin Call Obligations

CA s985M - Notification of Margin Calls
•    

A financial services licensee (the provider) that has issued a margin lending facility to a retail client must, when the facility goes into margin call, take reasonable steps to notify the retail client under the facility of the margin call in accordance with this section.

•    

However, if there is an agreement between the provider, the retail client, and another financial services licensee (the agent) that the agent will receive communications from the provider in relation to the margin lending facility on behalf of the retail client, then:

  •    

the provider must take reasonable steps to notify the agent (instead of the retail client) of the margin call in accordance with this section; and

  •    

the agent must take reasonable steps to notify the retail client of the margin call in accordance with this section.

These are civil penalty provisions.

CA s985L provides that a financial services licensee must not require, as a condition of issuing a margin lending facility to a retail client, that the retail client enter into an agreement of the kind referred to in the second bullet point above (ie requiring notice of a margin call to be given to an agent instead of to the client personally).

The notification of a margin call must be given at a time determined by ASIC or, if ASIC has not prescribed a time, then as soon as practicable (s985M(3)).

The notification must be given in a manner agreed between the parties, or, if there is no such agreement, in a manner determined by ASIC, or, if ASIC has not prescribed a manner, in any reasonable manner (s985M(4)).

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Reporting Obligations

CR r7.9.30B - Additional Reporting Obligations
A periodic statement for a holder of a financial product must include the following details about the margin lending facility:
(a)   the outstanding loan amount;
(b)   the loan credit limit;
(c)   the current interest rate, and any changes to the interest rate since the last statement was provided;
(d)   an itemised list of the property by which the credit is secured, including;
  (i)   the value of each item used for calculating the current LVR; and
  (ii)   the loan to value ratio (if any) of each property item listed;
(e)   a summary of the loan to security ratios, showing separately:
  (i)   the allowable loan to security ratio;
  (ii)   the maximum loan to security ratio, including any buffer allowed under the terms of the facility; and
  (iii)   the current LVR; and
(f)   a summary of all transactions affecting the margin loan facility during the reporting period.

CA s1017D(1)(b)(va) applies the periodic reporting obligations in s1017D to margin lending facilities.

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