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The first legal mortgagor: a consumer without adequate protection?

Whitehouse, Lisa

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Abstract

This article contends that the UK government’s attempt to create a well-functioning consumer credit market will be undermined if it fails to reform the private law framework relating to the first legal mortgage. Such agreements are governed by two distinct regulatory regimes that are founded upon very different conceptions of the mortgagor. The first, the regulation of financial services overseen by the Financial Conduct Authority, derives from public law and is founded upon a conception of the mortgagor as “consumer”. The other is land law, private law regulation implemented by the judiciary and underpinned by a conception of the mortgagor as “landowner”. Evidence suggests that the operation of these two regimes prevents mortgagors from receiving fair and consistent treatment. The current reform of financial services regulation therefore will change only one part of this governance regime and will leave mortgagors heavily reliant upon a regulator that still has to prove itself. What this article argues is that reform of the rules of private law must also be undertaken with the aim of initiating a paradigm shift in the conception of the mortgagor from “landowner” to “consumer”. Cultural shifts of this kind take time but the hope is that this conceptual transformation will occur in time to deter the predicted rise in mortgage possessions.

Publication Date Jun 22, 2015
Journal Journal of consumer policy
Print ISSN 0168-7034
Electronic ISSN 1573-0700
Publisher Springer Verlag
Peer Reviewed Peer Reviewed
Volume 38
Issue 2
Pages 161-180
Institution Citation Whitehouse, L. (2015). The first legal mortgagor: a consumer without adequate protection?. Journal of consumer policy, 38(2), 161-180. https://doi.org/10.1007/s10603-015-9284-6
DOI https://doi.org/10.1007/s10603-015-9284-6
Keywords Mortgage law; Financial services regulation; Consumer protection; Mortgage credit directive
Publisher URL http://link.springer.com/article/10.1007/s10603-015-9284-6
Copyright Statement ©2016 University of Hull
Additional Information Author's accepted manuscript of article published in: Journal of consumer policy, 2015, v.38, issue 2. The final publication is available at Springer via http://dx.doi.org/10.1007/s10603-015-9284-6

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