preview

The Key Provisions Of The Code Relating To Mortgages And Credit

Decent Essays

Introduction to enforcement of a security interest under the PPS Act that secured a Code-regulated loan The National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) includes the National Credit Code (the Code) as Schedule 1 to the NCCP Act. When a security interest under the PPS Act secures a credit contract governed by the Code, the enforcement of the security interest is also governed by the provisions of that Code. This guidance note outlines the specific provisions of the Code relating to mortgages over goods. Key provisions of the Code relating to mortgages over goods Section 91 of the Code prevents a credit provider, without the consent of the court, taking possession of mortgaged goods if the amount currently owing under the …show more content…

The credit provider must then wait 21 days before disposing of the goods. The credit provider must instead return the goods if in the intervening period the arrears under the mortgage plus the enforcement expenses have been paid. Section 103 of the Code allows the mortgagor to nominate a person who will buy the goods for a price at or above the estimated value specified by the creditor, and the creditor provider must then sell the goods to that person. Section 104 of the Code specifies the amounts the credit provider can deduct from the proceeds of sale of the goods, and requires an account to be provided to the mortgagor in relation to the sale proceeds. Regulation 4.1 of the Personal Property Securities Regulations 2010 (Cth) reconciles the notice provisions of the PPS Act with those of the Code by waiving compliance with some of the PPS Act provisions, provided the equivalent Code provisions are satisfied. Example 1: Section 130 of the PPS Act requires “[a]t least 10 business days before collateral is to be disposed of, the secured party gives notice to the grantor and to any secured party with a higher priority”. This is taken to have been complied with, if under s 102 of the NCC, “[w]ithin 14 days after taking possession of collateral under a

Get Access