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MFAA Prosper : Mortgage and Finance Brief 06
Case TWO Case ONE The consumer’s complaint: A consumer alleged that a broker had accessed his bank account without authority. The broker’s response: The broker explained that he had been requesting bank records to support a loan application, and because the consumer had delayed supplying these the consumer provided internet access to his account, the details of which the broker printed off while on the phone with the consumer. Although he later realised he had printed off more details than were required to support the application, he did not submit all to the lender. However, he retained all records in case there was a request from the lender for more details. The loan was eventually declined for serviceability reasons by the lender. Subsequently in a Supreme Court action involving the consumer, the broker, on legal advice, included in an affidavit the full details of the bank records he had printed off. The use of these records was not challenged by the Court or the consumer’s legal representatives. However in a complaint to the MFA A Investigating Officer the consumer alleged that the records went beyond the six months period required by the lender. The Tribunal’s decision: The Tribunal decided that, while the member could have acted more professionally, his actions did not amount to misconduct. The Tribunal was of the view that the member believed he had authority, albeit wrongly. The Tribunal ordered: It required the member to supply a written undertaking regarding privacy matters and an annual audit of those processes to MFA A. Afairgo–for consumer & broker Real-life cases highlighting the MFAA Disciplinary Tribunal’s high standards of ethics, and the consequences of crossing the line. The consumer’s complaint: A consumer alleged that a broker had falsified a pre-approval letter purporting to have come from a lender. The consumer contacted the broker’s office immediately on receipt of the letter indicating it was obvious that the letter was false. The broker’s response: The broker, on investigation, established that the letter had been sent by one of his (now former) employees, who indicated the letter had been sent because she was under pressure from the consumer to obtain approval. The Tribunal’s decision: The Tribunal accepted that the broker member was not directly involved in the falsification and he was most concerned once he found out. Nevertheless the Tribunal took a firm attitude that MFAA members are responsible for the conduct of their staff or other representatives. It noted that the member’s systems are clearly not robust enough to minimise improper or unprofessional conduct. Consequently the Tribunal found the allegation substantiated and the member is guilty of misconduct by way of his vicarious liability for the actions of his staff. The Tribunal ordered: In relation to possible sanctions resulting from the misconduct, the Tribunal took into account the full circumstances of the allegation, the broker’s past conduct and the fact that he has now established a new company with him as the only director. The Tribunal decided, on balance, that the broker should not be expelled, which would be the normal consequence of such conduct. This was conditional on him • providing a written undertaking to MFAA as to future processes and auditing of its processes with a report back to MFAA • informing both the lender and his aggregator of the outcome of this matter If the member does not comply with these requirements the matter will be re-opened. 56 | Mor tgage & Finance brief Legal - Tribunal
Mortgage and Finance Brief 05
Mortgage and Finance Brief 07