Loan Tip: Lenders Requesting Letters from Accountants, Financial Planners and Lawyers

Discussion in 'Loans & Mortgage Brokers' started by Terry_w, 25th Feb, 2020.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    There is a trend where lenders are increasingly asking for letters or forms etc signed by accountants or financial planners – sometimes lawyers too.


    Some requests that I have seen or heard of include


    Letter to say client will use borrowed funds to invest in shares

    Lenders don’t like to give a borrower access to large sums of borrowed money as they could spend those funds of sex, drugs and rock n roll and waste the rest. So, to shift the blame they often ask for a letter from an ‘accountant’.

    The term accountant is vague, I think anyone can call themselves an accountant for starters, but they probably want a registered tax agent to write the letter (who may or may not be an accountant).

    Advising on share purchase or sale is financial advice as shares are a financial product. An AFSL would be needed to give such advice (or be an authorised rep). Therefore, a more appropriate person to write such a letter would be a financial planner – someone licenced. But sometimes lenders specifically ask for ‘accountants’.

    Should an accountant write such a letter? That is up to them, but it can be potentially dangerous as it might imply that they have advised the client on this.

    An accountant writing “Johnny has informed me that he will use the borrowed money to invest in shares traded on the ASX” also seems to have little value to me. It would be just as good if the client got a letter from his or her mum saying the same thing.


    A financial planner writing such a letter can also be risky too. Such a letter might imply financial advice has been given and this would generally only be possible where a statement of advice (SOA) has been prepared.


    Letters concerning Companies trading

    It is also common practice for a lender to ask for a letter from the borrower’s ‘accountant’ confirming that companies that the person is a director of are not trading or trading profitably.

    Here is a copy of a recent condition on a loan pre-approval:

    “Accountant letter confirming profitable trading; or confirming that company only

    holds property and does not trade in its own right.”

    How the heck would an accountant know whether a property is trading at a profit or not. They might have an idea that a property made a profit last financial year, but a lot could happen after that.

    This request was for a client who had set up a new company after the end of the financial year and the company had not had to lodge a tax return yet or have appointed an accountant. So, the company’s future accountant probably would not know of the existence of the company yet.

    Could they write a letter? Up to them.


    Guarantees and ‘financial advice’

    We have had issues in the past where there is a personal guarantee involved and lawyers have had to explain the guarantee to a person making the guarantee – this is generally straight forward (btw, I would never act as a lawyer in this instance if I was also the broker as a conflict of interest could be argued).

    But often there is also a requirement for the guarantor to get their accountant to sign a proforma letter titles ‘financial advice’. What the lender really wants is for the guarantor to get advice on the profitability of the company they are guaranteeing the loan for and its ability to repay the loan.

    But having the ‘financial advice’ wording scares a lot of accountants – and rightly so.

    Financial planners generally won’t want to sign off on these either as they are generally not accountants or don’t know the financials of the company, plus the letters usually ask for accountants specifically.


    Legal Advice

    I once had an issue as a lawyer too. I had to sign a proforma letter after giving legal advice to a client about a guarantee. But the letter that had to be signed stated that the borrower and the guarantor were not to be in the same room when the advice was given. The borrower was a company with a sole director and the guarantor was that very director. To solve the problem I asked him to stand in the doorway so he was both in a different room at the same time and then I modified the proforma to comment on the guarantor being the mind behind the company.
     
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  2. Peter_Tersteeg

    Peter_Tersteeg Mortgage Broker Business Member

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    Here's some solutions:

    Letter to say client will use borrowed funds to invest in shares
    Not a big deal if you take a reasonable approach. What lenders don't want to see is that you're borrowing a large amount of money for this purpose with no track record.
    * Start small, most lenders have a cash out figure where they don't ask for too much info. Work with that and if successful, go back for more later.
    * For larger amounts, demonstrate that you know what you're doing. An existing portfolio can help here.
    * If you want a large amount of money, don't have the existing track record and haven't gotten financial advice, then WTF are you doing?

    Letters concerning Companies trading
    Happens all the time, I've even got a template for it which describes:
    * Accountant has been working with the clients for x years.
    * As of the last tax return, the company was trading profitably with no ongoing liabilities.
    Never had a problem with this, most accountants are happy to do it for their existing clients if you make it easy for them.

    Financial & Legal Advice
    It's been a long time since a guarantor was asked to get financial advice but legal advice is fairly common. The biggest hassle I've seen recently is finding a lawyer that has the time to do it and doesn't charge an unreasonable amount (which is subjective).
     
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  3. Paul@PAS

    [email protected] Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Hardest of the lot now is a sophisticated investor cert. We are NOT allowed to issue them no way no how. And this is applying to more and more accountants. Our PI insurer says it must not be issued as they consider it involves elements of financial and credit advice.

    ASIC needs to look at this requirement and its misuse. A recent media blitz by a new player is touting high risk debt securities to wholesale investors when they can access these certs but they dont mention that issue and just mention companies, smsfs etc. How can I issue that and not mention risk ? And yet that is financial advice and not accounting work. And likley needs legal advice on what "security" means. [Hint its not secured] Hence the insurer policy that I / we cannot issue a sophisticated investor certificate.
     
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  4. Manic

    Manic Well-Known Member

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    I was recently required to get a guarantor letter signed by a lawyer for a loan and was quoted $1200 for the advice. This was an unforeseen cost and also presented as a final hurdle after the loan was assessed which took weeks. I ended up getting it done for free by a friend but I would not want to go to a lender that imposes those requirements/additional costs in the future.
     
  5. Rolf Latham

    Rolf Latham Inciteful (sic) Staff Member Business Plus Member

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    With increasingly complex and opaque regulatory requirements which has already priced financial planning/ wealth coaching out of the reach of all but the wealthy with enough discretionary income, expect similar in the mortgage world.

    One simply can not create red tape and fluff in a regulatory environment ( some very much needed but some just plain vain and lacking vision around the collateral damage) and not expect that hot mess to have significant impact on the cost of producing and distributing the product.

    Many recommendations from the RC into Banking, and flow ons are some prime examples of lacking due care and consideration to the consumer.

    ta
    rolf
     
  6. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    These start at $500 sonshop around
     
  7. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    An email from the broker member association last week about this topic said:

    Dear Member

    In the past week, I have received a letter jointly signed by the CEOs of CPA Australia, the Institute of Public Accountants (IPA), and the Chartered Accountants Australia and New Zealand (CA ANZ) advising me of the current guidance they are giving to their combined estimated 240,000 accountant members in Australia.

    The guidance that is being given through these associations to their members advises them not to complete requests for capacity to repay certificates, which are also known as an accountant’s letter and are requesting such requests for these to cease.

    Noting not all accountant letters requested by lenders are the same, I sort further clarification on this from the associations whereby they further advised that accountants 'can, with their client’s consent, provide a statement of their client’s financial position or other factual information such as Business Activity Statements that can be verified’.

    This means that in this instance, you should still be able to obtain accountant letters that are requested in this style of statement.
     
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  8. Paul@PAS

    [email protected] Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    I received a wierd Pepper one. Its started with disclosure of accounting information. Then a follow up asked for a confirmation about the client assets & liabilities .....I stopped there. IMO the lender should assess borrower assets and liabilities.
     
  9. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    How can an accountant, or anyone, know someone's liabilities? All they could do is ask and then say 'they told me they owe $100,000 - but I cannot verify if this is true or not!'
     

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