The Commission for the Financial Market (CMF), puts in consultation a third regulation proposal that sets the requirements, rules and conditions that must be met by the commissions charged in money credit operations regulated by Law No. 18,010.
The regulations seek to comply with Law No. 21,314, which establishes new transparency requirements and reinforces the responsibility of market agents. The aforementioned law introduced modifications to Law No. 18,010, which regulates credit operations and other monetary obligations, adding, among other changes, a new article 19 ter.
The new article 19 ter of Law No. 18,010 establishes that it will be the CMF that, by means of a general rule, will establish the requirements that the commissions charged in a money credit operation must meet in order not to be considered as interest.
According to said Law, any amount that the creditor receives or is entitled to receive over and above the capital of a credit operation must be considered interest. This is particularly relevant in our legal system, since there is a limit for the collection of interest, called the conventional maximum rate (TMC).
In this context, the regulations determine the requirements that must be met by the commissions charged in credit operations, establish the date of entry into force of the new provisions and define the terms and conditions in which the entities must inform the contractual modifications that occur under the new law. This with respect to line of credit contracts associated with cards or checking accounts.
In order to provide greater clarity regarding the objective requirements and conditions that the collections made to the debtor must meet in order to be considered commission and not interest in a credit operation, the new regulatory proposal establishes four objective criteria:
1) That the collection made to the debtor is calculated based on the cost of providing the service.
2) That the service has been effectively provided to the debtor and corresponds to a real service and different from those inherent to the money credit operation.
The proposal states that a service inherent to the credit operation is considered to be: i) that which is necessary to initiate, celebrate, materialize or terminate the credit operation; and ii) that which the creditor is obliged to lend to the debtor in compliance with legal and regulatory requirements applicable to credit operations. For its part, it establishes that any service that by legal or regulatory provision the creditor cannot provide directly will not be considered inherent to the credit operation.
3) That the concept to which the payment corresponds, as well as its total amount for the debtor, has been expressly informed and accepted by the debtor, prior to its collection and the provision of the service, regardless of whether the payment for said service is made in advance of its provision.
4) That the information of such charges associated with those services to be contracted for credit operations, be made available to the public through the same channels used by the creditor to make offers of money credit operations or contracting from the same.
The proposal establishes that for the purposes of the provisions of article 2 of Law No. 18,010, which defines interest, it will be considered that the collection is received by the creditor: i) if the service is provided directly by him or by a company of your business group; and ii) if the service is inherent to the money credit operation, even when it is provided by third parties.
The regulatory proposal also deals especially with credit operations originating from the use of lines of credit associated with credit cards or checking accounts.
Thus, it clarifies that the same requirements on commissions are applied and that the administration, operation and maintenance of the line or card are not considered inherent services, therefore the charges to the debtor for these concepts are commissions, provided that said charge is not depending on the amount of the money credit operation.
The consultation will run until Friday, June 17, 2022.
The details of the proposal are available in the Regulations in Consultation section of the institutional website. In addition, the CMF makes available to interested parties a presentation, information brochure and frequently asked questions document that summarize the main contents of the proposal.