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

demoivre

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If you have been deemed not impacted, the Statute of Limitations does indeed snooker you.
I can see how that would be the case for a mortgage that has been fully paid off more than six years ago. I can't for the life of me see how it applies to an active contract ie where monthly mortgage payments are currently being made. If someone has a problem with their active mortgage contract today, be it tracker related or otherwise, they take it up with the lender. If the issue can't be resolved they go to the FSO or the courts..
 

Dazzler123

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I can see how that would be the case for a mortgage that has been fully paid off more than six years ago. I can't for the life of me see how it applies to an active contract ie where monthly mortgage payments are currently being made. If someone has a problem with their active mortgage contract today, be it tracker related or otherwise, they take it up with the lender. If the issue can't be resolved they go to the FSO or the courts..
If you sought a tracker and were refused but were contractually entitled to one... then your cause of action accrued when you were refused. You have six years to sue thereafter.

If you were not offered a tracker when that was an option that should have been open to you...that is most likely not a breach of contract, rather a breach of consumer legislation.

Unless the CBI can force the banks to admit more cohorts, those who have been deemed not impacted are going to face an uphill struggle if the banks wish to rely on the statute of lkmitations.
 

Brendan Burgess

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Dazzler

I agree with you that this is the way the Ombudsman and the Court interpret the six year rule.

But this is what the Act says

(5) For the purpose of subsections (3) and (4), conduct that is of a continuing nature is taken to have occurred at the time when it stopped and conduct that consists of a series of acts or omissions is taken to have occurred when the last of those acts or omissions occurred.

Let's say that I have mortgage protection insurance with my lender and it's €100 a month. But since I took it out 10 years ago, they have been charging me €100 twice each month. A pure clerical error.

They could argue that the error happened 10 years ago and therefore was statute barred.

I would argue that as it's still occurring, the 6 year time limit has not started.

So, if I have a contract which says that mortgage rate after the fixed rate period will be ECB +1%.

The fixed rate period ended 10 years ago. But they are charging me the SVR today. Can I not argue, that the conduct complained of is of a continuing nature and so the 6 years doesn't start until they stop charging me the SVR?

It's some years and a previous Ombudsman since I have argued this but I got nowhere.

Brendan
 

Dazzler123

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Dazzler

I agree with you that this is the way the Ombudsman and the Court interpret the six year rule.

But this is what the Act says

(5) For the purpose of subsections (3) and (4), conduct that is of a continuing nature is taken to have occurred at the time when it stopped and conduct that consists of a series of acts or omissions is taken to have occurred when the last of those acts or omissions occurred.

Let's say that I have mortgage protection insurance with my lender and it's €100 a month. But since I took it out 10 years ago, they have been charging me €100 twice each month. A pure clerical error.

They could argue that the error happened 10 years ago and therefore was statute barred.

I would argue that as it's still occurring, the 6 year time limit has not started.

So, if I have a contract which says that mortgage rate after the fixed rate period will be ECB +1%.

The fixed rate period ended 10 years ago. But they are charging me the SVR today. Can I not argue, that the conduct complained of is of a continuing nature and so the 6 years doesn't start until they stop charging me the SVR?

It's some years and a previous Ombudsman since I have argued this but I got nowhere.

Brendan
If you were explicitly to automatically revert to a tracker rate then i would agree with that interpretation. You will face a defence based on your delay but you may not be statute barred. But as i understand it, those cases have been deemed impacted. If you had to take some action to avail of a tracker rate or if you were to revert automatically to a rate that was not explicitly a tracker, or if you were not given the option of a tracker...you would be statute barred.

The FSPO is entitled to overlook the statute but i dont believe they will as you will have the banks judicially reviewing those decisions.
 

Johnc6

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Time limits for complaints to Ombudsman:

Financial Services and Pensions Ombudsman Act 2017
51. (1) A complaint in relation to conduct referred to in section 44 (1)(a) that does not relate to a long-term financial service shall be made to the Ombudsman not later than 6 years from the date of the conduct giving rise to the complaint.

(2) A complaint in relation to—

(a) conduct referred to in section 44 (1)(a) that, subject to the requirements specified in subsection (3), relates to a long-term financial service, or

(b) conduct referred to in section 44 (1)(b), that is subject to the requirements specified in subsection (4),

shall be made to the Ombudsman within whichever of the following periods is the last to expire:

(i) 6 years from the date of the conduct giving rise to the complaint;

(ii) 3 years from the earlier of the date on which the person making the complaint became aware, or ought reasonably to have become aware, of the conduct giving rise to the complaint;

(iii) such longer period as the Ombudsman may allow where it appears to him or her that there are reasonable grounds for requiring a longer period and that it would be just and equitable, in all the circumstances, to so extend the period.

The FSPO can extend the time limit as per section (iii)
 
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notabene

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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.



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
No statue of limitations for fraud, but after having a detailed conversation with a Guard on the fraud squad in Harcourt st in Aug 2016, extremely difficult to prove intent, short of a whistle blower, near impossible & also spoke to ODCE and similar story, burden of proof v high before they will consider a case - both understandable, needs to be proved beyond a reasonable doubt and only one chance to do it in each case not to mention the cost of such cases if unsuccessful
 

Dazzler123

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No statue of limitations for fraud, but after having a detailed conversation with a Guard on the fraud squad in Harcourt st in Aug 2016, extremely difficult to prove intent, short of a whistle blower, near impossible & also spoke to ODCE and similar story, burden of proof v high before they will consider a case - both understandable, needs to be proved beyond a reasonable doubt and only one chance to do it in each case not to mention the cost of such cases if unsuccessful
There is no statute of limitations for criminal proceedings. However, if you wish to take a civil action the statute of limitations will run from when the fraud was discovered or from when it could have been discovered with reasonable diligence.

It is open to the bank to argue that such fraud could have been discovered reasonably a long time ago so you will have a high hurdle to cross even if you can prove fraud.
 

Brendan Burgess

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Many tracker mortgage complaints may be outside time limit

The Ombudsman is dealing with 1,141 complaints at present.

Of these, he said 103 are being assessed with regard to whether or not they fall outside the statutory time limit, but he expects this number to increase.

"My best estimate at this state is that a time limit assessment will most likely be required on over 400 of those complaints."

Mr Deering said that some banks are "rigorously challenging the jurisdiction of this office to deal with complaints where there is a question in relation to whether the complaint was made outside the time limits."
He pointed out that other banks are not doing so.
 

Brendan Burgess

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This bit is particularly interesting. I was wondering how the 3 year time limit wasn't coming into play.

Deering said the Oireachtas made a legislative change in 2017 known which also introduced a “date of knowledge” limit. This means in addition to the six-year period from the date of the conduct, there is also the possibility of a customer making a complaint within three years of them becoming aware of alleged misconduct.

He said the “sad irony” is that some lenders are using this clause, which was designed to help consumers, to argue against the investigation of these complaints.

Some of the customers involved contacted their banks years ago to say they believed they should be on a tracker mortgage – their banks are now arguing they were aware of the misconduct at this time and could have made a complaint then.


So if someone did not raise the issue at the time because they were not aware of it, they can now make a complaint to the Ombudsman as they are within the three year time limit.

However, if they queried it 8 years ago, they would be out of time now.

Brendan
 

skinnylegs

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This bit is particularly interesting. I was wondering how the 3 year time limit wasn't coming into play.

Deering said the Oireachtas made a legislative change in 2017 known which also introduced a “date of knowledge” limit. This means in addition to the six-year period from the date of the conduct, there is also the possibility of a customer making a complaint within three years of them becoming aware of alleged misconduct.

He said the “sad irony” is that some lenders are using this clause, which was designed to help consumers, to argue against the investigation of these complaints.

Some of the customers involved contacted their banks years ago to say they believed they should be on a tracker mortgage – their banks are now arguing they were aware of the misconduct at this time and could have made a complaint then.


So if someone did not raise the issue at the time because they were not aware of it, they can now make a complaint to the Ombudsman as they are within the three year time limit.

However, if they queried it 8 years ago, they would be out of time now.

Brendan
Over to you Paschal
 
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Dazzler123

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This bit is particularly interesting. I was wondering how the 3 year time limit wasn't coming into play.

Deering said the Oireachtas made a legislative change in 2017 known which also introduced a “date of knowledge” limit. This means in addition to the six-year period from the date of the conduct, there is also the possibility of a customer making a complaint within three years of them becoming aware of alleged misconduct.

He said the “sad irony” is that some lenders are using this clause, which was designed to help consumers, to argue against the investigation of these complaints.

Some of the customers involved contacted their banks years ago to say they believed they should be on a tracker mortgage – their banks are now arguing they were aware of the misconduct at this time and could have made a complaint then.


So if someone did not raise the issue at the time because they were not aware of it, they can now make a complaint to the Ombudsman as they are within the three year time limit.

However, if they queried it 8 years ago, they would be out of time now.

Brendan
I figured that they would do this for cases deemed as not impacted under the CBI examination. I believe the three year time limit refers to when they could reasonably have discovered the issue. Im not sure when, with all the media coverage, would the date be that a person could have reasonably discovered they had a potential tracker issue.
 

TrackerThieves

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Ombudsman Ger Deering's interview from yesterday. Discusses that some banks are challenging the statute of limitations in relation to tracker cases. Also mentions that he can use his own discretion to increase the time limit depending on the specifics details of each case.
Copied from another thread as its relevant here.
 

Brendan Burgess

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Here is a transcript of what he said:

The people who were deemed not impacted by the banks are most affected by the time limits
Some banks have taken the approach of not challenging the time limits
However there are strict time limits set down in the legislation and it’s complex
One limit is 6 years after the conduct complained about occurred
3 years after you ought to be aware
If the bank challenges those time limits under the legislation and the evidence supports their view, I cannot investigate that complaint.
There are circumstances where I can extend that time limit at my discretion but there has to be a reason and it it has to be just and equitable to both parties
Eg if someone was ill over a significant period or there was no reason they would have been aware of it. But in many cases there are no such circumstances and in those cases, the three years and six years apply to them.
 

Brendan Burgess

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38,699
Very interesting article which highlights that BoI was probably the only lender to invoke the time limits. And they have now changed their policy on this.

KBC's answer is too ambiguous.

KBC said it is “determined to secure the best outcomes for all customers impacted by the tracker examination”.

“The application of any aspect of the relevant legislation relating to customer complaints rests with the office of the FSPO and we work openly and constructively with them.”
 
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