A lender with carried over instruments is a credit provider or lessor who has not offered – nor been assigned – any new credit contracts since 30 June 2010, but continues to collect under pre-existing contracts.
Obligations of unlicensed COI lenders who are not in an EDR scheme
Additional record-keeping and notification requirements apply to unlicensed carried over instrument lenders who do not elect to join an external dispute resolution (EDR) scheme including:
keeping registers of complaints and requests for hardship variations and stays of enforcement for the carried over instruments (s47(1)(f)), and
notifying us of significant contraventions or likely contraventions (s52).
If you are an unlicensed COI lender who is not a member of an EDR scheme, and you have not yet provided ASIC with a one-off audit report under s 49 (3A) of the National Credit Act, please contact ASIC immediately on 1300 300 630.
For more information on the obligations of unlicensed carried over instrument lenders see reg 25E and Schedule 2 of the National Credit Regulations 2010 (which apply the provisions in Chapter 2 of the NCCP Act to unlicensed carried over instrument lenders with some modifications).
Unlicensed carried over instrument lenders who fail to meet certain probity requirements are known to us as ‘prescribed unlicensed carried over instrument lenders’ and have restrictions placed on their conduct in relation to carried over instruments.
For example, if a carried over instrument lender, or an officeholder of the lender, is a person who is disqualified from managing a corporation, or who was convicted serious fraud in the last 10 years, the lender will be a prescribed unlicensed carried over instrument lender.
For a full list of the probity requirements see the definition of ‘prescribed unlicensed carried over instrument lender’ set out in Schedule 2 of the National Credit Regulations 2010. A list of the probity requirements is also set out in Form COI1.
Prescribed unlicensed COI lenders who wish to engage in credit activities
If you are a prescribed unlicensed carried over instrument lender, you must appoint a credit licensee as your representative to engage in the credit activity on your behalf. You may continue to receive amounts owing to you, but you cannot actively engage in credit activities in relation to the carried over instrument (for example, contacting the consumer to collect debts).
If you are a prescribed unlicensed carried over instrument lender (at time of first notifying ASIC or because of an event occurring after that notification) you need to notify ASIC using Form COI1. In the form, you must include information about:
the probity requirements you have not met
the licensee you have as your representative
The licensee you appoint as your representative will also need to notify ASIC in a separate form (Form COI3) that they have been appointed.
Form COI1 Notice of carried over instruments Form COI2 Change of details for unlicensed carried over instrument lender and prescribed unlicensed carried over instrument lender Form COI3 Notice of acting for a prescribed unlicensed carried over instrument lender Form COI4 Unlicensed carried over instrument lender annual compliance certificate
This is Information Sheet 110 (INFO 110). Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.
