Remember Venn diagrams

Venn diagrams are the shapes we used to draw in primary school maths to show ownership or membership relationships…

Venn diagram
vɛn/
noun
 1. a diagram representing mathematical or logical sets pictorially as circles or closed curves within an enclosing rectangle (the universal set), common elements of the sets being represented by intersections of the circles.
a20subset20b1

Another sleepless night last night…in all fairness to ANZ’s cumbersome bullying, I popped a disc in my back a couple of weeks ago: while improving, it is not helping at the moment and I find that it disturbs my sleep less if I leave the ‘lectric blanket on…the flip side of that is that the extra heat keeps the rest of me awake…lots of time to think…

It occurred to me about 3AM that the definition of security in the Code of Banking Practice is consistent with the definition of security in the original guarantee. the root of my problem. That’s this definition which quite clearly includes a guarantee as a subset of security:

guarantee security

Similarly, under the Code’s definition, under the guarantee the bank still has security for the credit that it extended to my ex-partner’s company

security 3

I really don’t think that we need top split hairs over this one anymore. Even if we did, what would take precedence, noting that the Code is just that, a Code and not a law: what ANZ writes in its own documentation – we still assume that it is competent – or what is in the Code?

I would argue that ANZ’s wording indicates a higher standard than the Code requires – for which ANZ should be commended – and thus that higher standard, that it has set for itself, is the standard that we should expect ANZ to apply…would that be fair? Reasonable? Consistent?

Hmmm…those words again…

A long day…

…today, most of it on my feet and I am too knackered to do much work here tonight. Truth be known I was awake a lot of last night stressing about how all this might pan out as it wasn’t looking good…

I have these crises of confidence where I am so positive that I must be missing something, that there must be some law that bars ANZ disclosing information pertaining to company lending to the guarantor of that lending. Surely there must be..? Surely.

…and that legal obstacle is somehow consistent with the undertaking by participating banks in the Code of Banking Practice to treat customers fairly, reasonably, consistently and ethically…? Surely…

…especially when there are changes to that lending likely to affect my decision to continue to give the guarantee; or changes that are beyond what was contemplated at the time the guarantee was given…surely…

That would be the same Code under which ANZ feels it can misrepresent legislation like the Consumer Credit Control and Finance Act, or key definitions form that very Code…?

Tap dancing

For most people tap dancing may be Shirley Temple’s main claim to fame, but it also has a specific sense where someone is desperately trying to avoid being called on a subject. Having set the scene, let’s see what ANZ’s Customer Relations team had to say….

They start with two extracts from the Banking Ombudsman’s guide Guaranteeing Someone Else’s Debt:

custome rrelations 1

Nice but whatever…nothing there says that ANZ cannot disclose information on company lending to the guarantor of that lending. Remember, ANZ has already said that it has an obligation to disclose this information if it is likely to cause the guarantor to affect their decision to give or continue to give the guarantee; or if that lending is beyond what was contemplated at the time of the guarantee being given. This guide does not – not once, anywhere – say that a bank may not disclose information on a company’s lending to the guarantor of that lending. 

ANZ continues…

customer relations 2 Now, this sounds good but when you read it, it is actually only talking about disclosing if the guaranteed company has financial difficulties, and even then, it only says that the bank could be in breach if it does this. ‘Could’ not ‘would’! I’d argue that the circumstance of financial difficulty would also qualify as something likely to cause the guarantor to affect their decision to give or continue to give the guarantee. This does not say that a bank may not disclose information on a company’s lending to the guarantor of that lending.

Would you not think that if there was a clear legal obstacle to disclosure ANZ would have cited it by now?: Wouldn’t you…if such an obstacle existed..?

security 1

Now we’re starting to get into some nitty-gritty…ANZ may choose to believe that the separation of security and guarantees is intentional. It is certainly convenient for it to believe so however its guarantee defines security:

guarantee security

In other words, the guarantee, the root of this whole problem defines a guarantee as a subset of security. It is reasonable then to expect that anything that applies to security then, unless stated otherwise, to guarantees.

The Customer Relations team continues…

security 2

No, the Code’s glossary does’t say that. It doesn’t say that at all. It doesn’t even list ‘security providers‘ let alone offer a definition for that phrase. The 2012 Code of Banking Practice defines ‘security‘ as:

security 3

I have included the items above and below ‘security’ to show that there is no other listing for ‘security provider’ in the Code’s glossary. The glossaries for 2007 and 2002 versions of the Code have the same definition of ‘security’and no definition for ‘security providers’.

Just for the record, here is the Code’s definition of a guarantee:

security 4

This is also the same in the 2007 and 2002 versions.

I think it’s reasonable to assume that ANZ employs competent staff. If not, it’s up to ANZ to prove that its staff are not competent. What does it say to you when a staff member from a major banking institution like ANZ makes a statement that is so patently untrue..?

What didn’t they say?

Not one thing about their obligation to disclose material change in the lending to a guarantor. Not one word. Just tap danced right around that one…