If you have been deemed "not impacted" is it the end of the line for you?

Brendan Burgess

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Anyone who got a redress letter can appeal to the Independent Appeals Panel, the Ombudsman or the High Court.

But what if you did not get a redress letter? What if the bank told you that you had no case.

Apart from the individual cases, there are some cohorts:

For example, PTSB “Discounted tracker”. They were charged a margin of 0.6% for the first year when the prevailing ptsb tracker rate was 0.8%. But when the year was up, they were charged 3.25%.

  • Ptsb has said that they were not impacted.
  • The Central Bank has agreed.

It’s the end of the line for them. They can’t go to the Ombudsman as they are outside the time limits – it’s over 6 years since the behaviour complained of occurred and 3 years since they should have become aware of it.

So unless the Oireachtas changes the time limit to 12 years, then they are snookered.

By way of comparison, AIB argued all along that the Prevailing Rate cohort were not impacted. They argue that if they had been offered a tracker rate, it would have been so high, that it would have cost them money. As a result, they were not impacted. The Central Bank forced AIB to acknowledge a "service failure" and so these 6,000 customers are in the Appeals System.

Likewise, the ptsb customers who broke out of the fixed rate early and were not offered a tracker rate. Now they have been offered compensation based on a margin of 3.25%. They are furious with this, but they can go to the Appeals Panel, Ombudsman or High Court and let them decide.
 

Brendan Burgess

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38,117
I think that these are the main "not impacted" cohorts

Charlie Weston's list:
:: Around 700 cases at Ulster Bank where customers did not start their mortgage on a tracker. They subsequently went on a tracker rate, but then fixed. After that they were denied a tracker;

:: Up to 300 cases at KBC where existing customers were denied a tracker after fixing;

:: Between 200 and 300 cases at Danske Bank where the lender has refused to restore some borrowers to a tracker;

:: Roughly 200 cases of staff and former staff at Bank of Ireland who say documents they have clearly show they should have trackers.

Some additional ones:

EBS Discounted Trackers
 

TrackerThieves

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If EBS is very confident, they might not invoke the statute of limitations.
This got me thinking
I was originally worried by the statue of limitation until Padraic had said it would not be an issue because the statute of limitations did not apply to the tracker examination. This came into effect a few years back.
Quote from central bank documentation
"3. Application of the Statute of Limitations The Statute of Limitations does not apply to the Central Bank’s powers to enforce compliance with regulatory requirements including those relevant to this Examination and does not negate lenders’ obligations to comply with the relevant regulatory requirements set out by the Central Bank."
Any idea how this affects the cases now with the ombudsman especially the individual cases not picked up by the investigation?
Does it only apply to cases where the central bank could or would have intervened?
Could it still be interpreted that it could apply to all tracker cases?
 

tnegun

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AIB said at their last appearance before the finance committee that they would waive the statue of limitations. So I assume this applies to EBS too?
Ms Helan Dooley said "On the last point, we have waived our rights with regard to the Statute of Limitations for the tracker population."
 

Dazzler123

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All the banks have agreed not to defend legal proceedings using the statute of limitations apparently.
 

Gimmestrength

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On a recent Irish Times "Inside Business" podcast (https://www.irishtimes.com/business/business-podcast) at around 38 mins Brendan said those who were told by a bank they were not impacted are "now completely snookered". He went on to say: "They can't go to the ombudsman because it is statute barred and they can't go to the High Court because it is statute barred.

"They were refused a tracker.... they're complaining about something that happened maybe 10 years ago and the time limit is 6 years so they're completely and utterly snookered".

This is not the case and I believe these comments and comments like them may encourage people with a potential tracker case not to take that case, thereby letting banks away with fraud.

Remember it is in the Central Bank's interest and the banks' interest to now draw a line under this issue and comments to the effect that the Central Bank report published last week marks the end of the road for people (i.e. if you were not already deemed impacted / redressed) are dangerous and will potentially let the banks get away with this.

Some things to note, in addition to what people have already said here in relation to banks waiving the statute.

1. The Central Bank, while arguably in its final report has abandoned those in dispute with banks over trackers, says individuals who are in dispute can take their case to the Financial Services and Pensions Ombudsman (FSPO) and ultimately to the High Court.
2. Paidraic Kissane who is the leading expert on this issue and without whom this scandal would probably not have been exposed has said there are 10,000 cases outstanding that have not yet been admitted by the banks. He has previously said that he has concerns that banks with their vast legal teams will start trying to argue statute of limitations on tracker cases. However he is still pursing many cases through the FSPO.
3. The FSPO said in March 2019 in its review of 2018: "Significant changes to the time limits for making a complaint to the Financial Services Ombudsman were made by the Oireachtas in July 2017. These changes were carried over to the FSPO as per Section 51 of the Act. As a result, any complaint about a “long-term financial service”, can now be made not only within a period of six years of the date of the conduct complained of, but also within a period of three years of a certain “date of knowledge” as prescribed within the Act. In addition, the Ombudsman has a statutory discretion, regarding such complaints, to extend the time if there are reasonable grounds for requiring a longer period and it would be just and equitable in all the circumstances to do so." Date of knowledge is when you realised that you were being overcharged. The fact that the overcharging started 10 years ago or more is not relevant if you only discovered last week, last year or whatever.
4. Remember the concept of "cohorts" of those impacted has been a handy way of ring-fencing this issue for the banks. However just because you are not part of a defined cohort does not mean you were not defrauded. If I go into a shop and steal a bicycle it is theft. It isn't any less of a theft if I am the first person to steal a bike from a shop!

And don't ever forget this is fraud, potentially and probably ongoing fraud.

This is NOT over. 10 years ago people were told they hadn't a case and were later redressed and compensated. It may be convenient for the Central bank, the banks (and their cheerleaders and proxys) to say this is over, move on, but we will continue to fight - by using the strength of our numbers and with the help of the likes of Padraic Kissane.
 

Brendan Burgess

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If you were not deemed impacted, you are out of time to complain to the Ombudsman or take a High Court case.

However, they should still make a complaint to the Ombudsman. The Ombudsman will decide if he can hear it or not. My understanding is that his default position is that he will hear the complaint. But if the bank objects, then he can go no further.

I understood that the bank's statements apply to those deemed impacted. But maybe the banks are happy enough for all cases, impacted or not, go to the Ombudsman. In fact, I suspect that the different banks will handle this differently.

And don't ever forget this is fraud, potentially and probably ongoing fraud.
I must say I had forgotten. Could you please link to the court case where someone was convicted of fraud?

If you have any evidence of fraud, then go to the Garda. If the Central Bank uncovered any evidence, they would have stepped back from the case and handed it to the Garda. Luckily for the victims, they Central Bank found no evidence of fraud.

And by the way, as fraud is a crime, there is no statute of limitations. So if you have evidence of fraud, you are not statute barred. I am not sure of the process, but I think you have to prove the fraud first. And the standard for fraud, as it's a criminal matter, is beyond reasonable doubt.

Brendan
 

TrackerThieves

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Statute of limitations
Postponement of limitation period in case of fraud.

71.— (1) Where, in the case of an action for which a period of limitation is fixed by this Act, either—

( a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or

( b) the right of action is concealed by the fraud of any such person,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.

(2) Nothing in subsection (1) of this section shall enable an action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed.

Postponement of limitation period in case of mistake.

72.— (1) Where, in the case of any action for which a period of limitation is fixed by this Act, the action is for relief from the consequences of mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it.

(2) Nothing in subsection (1) of this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake was made.The statute of limitations in the case of mistake or fraud will only begin from when the mistake or fraud was first discovered.


In my case Padraic wrote to EBS in 2015 telling them the tracker offered to me in 2008 was to be honored and backdated. I would imagine since the mistake/fraud was discovered in 2015 I have till 2021 to take my case? could anyone clarify this?
I think since the FSPO was not taking tracker cases for the last few years and the tracker examination was not looking at individual cases, something must be done to protect any individual that is now time barred but would not have been if case was taken in the last few years. We literally had no options to take a case until the tracker examination finished.
 

Gimmestrength

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Brendan just because there hasn't been a conviction or the central bank didn't uncover any evidence of fraud does not mean there was not a criminal offence of fraud or theft perpetrated.

More is the pity there has not been any accountability through the courts for this scandal and let's hope there is at some stage. The redress of those who were overcharged/defrauded/stolen from ( pick whatever word you like) and the discovery of a criminal offence are not mutually exclusive.

On the statute of limitations it is not as clear cut as you make out so please stop telling people this is over when it is not. if I discover today I was overcharged 10 years ago i can take a case within three years. Where the FSO has not been progressing tracker cases while the CB examination continued also adds another dimension.

This is NOT over
 

Gimmestrength

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Also if an overcharge continues to this day, which it would in most disputed cases, and legislation dictates that a case can be taken to the FSPO within 6 years of the conduct complained of, then there is likely to be no issue in taking cases to the FSPO.
 

Dazzler123

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If you have been deemed not impacted, the Statute of Limitations does indeed snooker you.

The Banks have taken a view that they will not rely on the Statute to avoid liability for impacted cases but I don't believe that there is any such promise for non-impacted cases. I agree with Brendan Burgess on this in that for non-impacted cases, they will rely on the Statute of Limitations, particularly if there is a glut of non-impacted breach of contract cases as this will be a simple method of disposing of multiple cases.
 

Brendan Burgess

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Also if an overcharge continues to this day, which it would in most disputed cases, and legislation dictates that a case can be taken to the FSPO within 6 years of the conduct complained of, then there is likely to be no issue in taking cases to the FSPO.
Hi Gimmestrength

I have used that argument before in non-tracker issues but it got nowhere. The Ombudsman and the Court do not seem to accept it.

Brendan
 

Brendan Burgess

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Brendan just because there hasn't been a conviction or the central bank didn't uncover any evidence of fraud does not mean there was not a criminal offence of fraud or theft perpetrated.
Hi Gimme

A cornerstone of our legal system is that someone is presumed innocent until a court finds them guilty.

I have seen no evidence of fraud. I have heard no reports of evidence of fraud.

But I would encourage you and anyone else with such evidence to report it to the Garda.

Brendan
 

Brendan Burgess

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I think that the best thing for people who are affected by this is to lobby their politicians.

Get the Ombudsman's limit changed to 12 years. That would cover almost all tracker cases.

Brendan
 

TrackerThieves

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Details of my tracker case are here
Where does the statute of limitation leave me?
my argument would be the the mistake was only discover in 2015 and am still being overcharged
 

Dazzler123

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Details of my tracker case are here
Where does the statute of limitation leave me?
my argument would be the the mistake was only discover in 2015 and am still being overcharged
You applied for a tracker rate in 2008 and you were refused as between the time that you posted the form and them making a decision, the Bank pulled trackers as a product?

That being the case, you should have issued proceedings for specific performance within the 6 year statute of limitations. Regardless of whether the form was an application form or acceptance of an offer, it doesn't make any difference. The Statute of Limitations applies from the date on which you should have gone on to the tracker rate.
 

TrackerThieves

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When I heard that EBS had stopped offering trackers I rang and was told by a local branch manager that the offer was no longer valid as the product was no longer on the market and I did not return the signed documents. I now know this was not true. Although it will be difficult to prove as this was over the phone I do have evidence that backs this up. It was not until I contacted Padraic in 2015 that I was sure he was wrong, whether mistakenly or purposely would I not have a case that the time only begins from 2015?
 

Gimmestrength

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If people think the have a case they should take it to the ombudsman and not be discouraged because Brendan or someone else here thinks the statute of limitations might apply. I have a different interpretation of it than he has.

It will be for the FSO to decide if it does apply, if and when it becomes an issue and ultimately for the courts. Get representation and go to the FSO. This is NOT over.
 

Gimmestrength

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Hi Gimme

A cornerstone of our legal system is that someone is presumed innocent until a court finds them guilty.

I have seen no evidence of fraud. I have heard no reports of evidence of fraud.

But I would encourage you and anyone else with such evidence to report it to the Garda.

Brendan
Hi Brendan,
(The fraud issue maybe needs a new thread...)
I am not suggesting otherwise. The presumption of innocence remains whether or not there have been prosecutions yet or not or whether or not I or anyone else believes a fraud took place. It is a given, and raising it within the context of this discussion is therefore a red herring.

Again, just because you have not seen or heard evidence is not in itself evidence of anything. The Central Bank examination framework was not conceived as a criminal inquiry, rather as a means to get the banks to themselves identify impacted customers which they did kicking and screaming. And there are more cases.

its remit was not to assemble evidence for a prosecution.... similar in ways to how Tribunals of inquiry worked. However it does not mean a prosecution should not or cannot follow and I would encourage the CB to forward the final report to the Gardai for examination. They may find there is not evidence to prosecute but again it doesn't mean a fraud or theft hasn't taken place. You are right that in the absence of any such evidence nobody is criminally responsible.

On reporting, It is hardly for an individual to report it to gardai but maybe that would help too.

The issue of whether a criminal action (knowingly denying people what was rightfully theres) took place has come up before, by the way https://www.irishtimes.com/news/crime-and-law/couldn-t-be-simpler-to-bring-charges-against-tracker-scandal-banks-1.3262366

Ok have to head to work to pay those rip off interest rates. Good luck !
 

Brendan Burgess

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However, they should still make a complaint to the Ombudsman. The Ombudsman will decide if he can hear it or not. My understanding is that his default position is that he will hear the complaint. But if the bank objects, then he can go no further.
If people think the have a case they should take it to the ombudsman and not be discouraged because Brendan or someone else here thinks the statute of limitations might apply.
Hi Gimme

We are in agreement that people should complain whether or not they are statute barred.

At the end of the day, it doesn't matter what you or I think.

If the Ombudsman decides that you are statute barred, then it's the end of the line, unless you want to challenge that decision in the High Court.

If the Ombudsman decides to hear your case, then it's up to the lender to challenge that it is statute barred. I understand that some will challenge it and others are happy to let the complaint be heard - especially if the lender is confident of winning.

Brendan
 
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