# Irish Time Tracker Article -- 3 Jan 2017



## Bikini Widow (3 Jan 2017)

Interesting Fintan O Toole article in Irish Times

http://www.irishtimes.com/opinion/f...s-have-gotten-away-with-major-fraud-1.2923644

Really hope Tracker issue awareness continues to snowball in 2017 

Best wishes,
BW


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## notabene (3 Jan 2017)

I have been saying this in relation to my own account for the last year after reading the emails which the data protection request produced, I feel it is a clear case of fraud.

However, having spent quite a bit of time talking to the fraud squad in Harcourt street, the Garda I spoke too felt that it would be too difficult to prove criminal fraud charges. Even though you could say the dogs on the street know what happened, you have to prove beyond a reasonable doubt that they did it and it is very hard to do that.

In any criminal case you must prove two things, Actus Reus (that they actually physically did it) and Mens Rea ( that they had the intent to do what they did)

You need actus reus which is that they did it, and they did, so that can be proved.

But you must also prove intent, mens rea, which means that they did it on purpose and this is where you fall into difficulty. It's too easy for the bank to be able to say it was a systems failure, the contracts were misred etc and then you can't prove that it happened beyond a reasonable doubt. This was her feeling anyway. She was very pleasant and spent any amount of time which I wanted discussing it and really did try her best to try to find something they could use.

The other option then which I am currently looking into is civil fraud under the tort of deceit. The six year rule does not apply if you can prove fraud. You must prove the possibility that fraud occurred. However, you do not have to prove but it occurred beyond a reasonable doubt as you would in a criminal case. The problem with this of course is that it means a high court case and all which that entails, but I am increasingly thinking that this is the only way.


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## Freshstart (3 Jan 2017)

Maybe I am missing something very basic here. Given now that this tracker issue is effecting customers across so many banks how can they maintain it to be a "systems failure"? What would be the likelihood of the same system failure across many institutions causing the same problem for all their customers ie denial of tracker?!


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## cremeegg (3 Jan 2017)

notabene said:


> However, having spent quite a bit of time talking to the fraud squad in Harcourt street, the Garda I spoke too felt that it would be too difficult to prove criminal fraud charges. Even though you could say the dogs on the street know what happened, you have to prove beyond a reasonable doubt that they did it and it is very hard to do that.



Perhaps you should write to the Commissioner, its hardly a matter that a single Garda would be able to take on themselves.

As for proving the intention, well after complaints were received by the bank that trackers were removed incorrectly, I would think criminal intention would be less difficult to establish.

After all the question is , "Well, Ms. Smith when you took this person off their tracker did you know that you were enriching the bank by your actions".


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## notabene (3 Jan 2017)

Freshstart said:


> Maybe I am missing something very basic here. Given now that this tracker issue is effecting customers across so many banks how can they maintain it to be a "systems failure"? What would be the likelihood of the same system failure across many institutions causing the same problem for all their customers ie denial of tracker?!



I'm not saying it is - it's an example the Garda gave that the bank could use in a criminal case and could possibly get off by doing so


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## notabene (3 Jan 2017)

cremeegg said:


> Perhaps you should write to the Commissioner, its hardly a matter that a single Garda would be able to take on themselves.
> 
> As for proving the intention, well after complaints were received by the bank that trackers were removed incorrectly, I would think criminal intention would be less difficult to establish.
> 
> After all the question is , "Well, Ms. Smith when you took this person off their tracker did you know that you were enriching the bank by your actions".



you would hope so but when I met Ger Deering last feb he asked me did I think they did it on purpose or was it a failure by the bank - i of course said I thought it was intentional but apparently they've made a lot of big mistakes and this is where the problem lies is proving beyond a reasonable doubt it wasn't an error.


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## Freshstart (3 Jan 2017)

Notabene that's what I mean. How could a bank convince a judge it was ignorant to the fact and the whole debacle was down to a glitch. How could any judge believe any bank made a whoopsy when  the same scenario played out for thousands for customers. And if it was a glitch then the problem would have expected been fixed when brought to the banks attention not fought every step of the way!


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## notabene (3 Jan 2017)

Freshstart said:


> Notabene that's what I mean. How could a bank convince a judge it was ignorant to the fact and the whole debacle was down to a glitch. How could any judge believe any bank made a whoopsy when  the same scenario played out for thousands for customers. And if it was a glitch then the problem would have expected been fixed when brought to the banks attention not fought every step of the way!



Well first of all it's a jury in a criminal case you'd be convincing not a judge - theoretically all you need is one juror who doesn't believe it's beyond a reasonable doubt and that's it.

Believe me I understand the frustration, I am so sick of this living like this and have tried absolutely everything to sort it out. I was in fact was so distracted by the discussion with the guard I had a small tip in the car after it. 

But as much as I don't like what she said I also understand what she was saying - in order to be sure of a criminal convinction you need water tight proof that they did do it on purpose. I would suspect that is not written down somewhere to get. So short of a whistle blower, where is the proof it wasn't an accident (again, I'm not saying it was but they would argue that) And while we all know there was intent, you have to be able to prove that this is what it was and how exactly can that be done?

It's not good enough in a criminal court to say because it happened to '000s. 

I have emails which say they knew I was entitled to it & they benefited financially by paying compensation and the guard said this wasn't enough to be sure of a criminal conviction.if you take a civil case the burden of proof is far lower and therefor more likely to be successful. Not fair bit but in law it's often not about right and wrong but what you can prove and what you can't


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## TLO (3 Jan 2017)

A victim of a crime can write to the DPP and ask that their case be taken on.  If enough mortgage fraud victims write to the DPP then, hopefully, prosecutions will result.  Ideally, the directors of the banks should be prosecuted in a personal capacity as a "systems failure" on this scale more than likely happened with the blessing and possible instruction from the relevant boards of directors.  Even if convictions aren't obtained, the time, hassle and negative publicity of having to defend a criminal prosecution in a personal capacity would encourage directors to take their responsibilities far more seriously, and help prevent something like this from happening again.


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## mister32 (3 Jan 2017)

notabene said:


> Well first of all it's a jury in a criminal case you'd be convincing not a judge - theoretically all you need is one juror who doesn't believe it's beyond a reasonable doubt and that's it.
> 
> Believe me I understand the frustration, I am so sick of this living like this and have tried absolutely everything to sort it out. I was in fact was so distracted by the discussion with the guard I had a small tip in the car after it.
> 
> ...




I have total support for you Notabene
I'm waiting for Aib and Boi to return my tracker.

The legal approach to find fault with the bank directors would be good but difficult to prove.

It reminds me of a comment by Padraic Kissane at the last city West meeting when he said along the lines of Erin Brockovich he was looking for a  Charles Embry figure to emerge from the banks.


That's the only hope for a successful prosecution in my opinion.

Having said that it should be possible to get your proper compensation since you have already proved the wrongdoing by the bank.


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## trasneoir (3 Jan 2017)

An investigation would need broad access to bank internal emails and documents to identify criminal suspects. There's a lot of room to hide in these big organizations.


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## Monbretia (3 Jan 2017)

A whistle blower is what is needed here, there has to be IT staff that were instructed to change the default on those mortgages due to go back to tracker, it was the standard default on all the ones I had experience of so someone had to go in and alter the settings on those accounts.   I'm surprised there is not disgruntled outsourced staff who surely know and have said nothing.


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## Mauritius (3 Jan 2017)

If it wasn't intentional, how is it that all of the main banks took customers off tracker rates during the same time period (end of 2008 into 2009) and by the same methods (not allowing customers to revert to trackers after fixing periods expired or taking them off trackers if they could only afford to continue on interest only payments)?  All 15 banks did it, which indicates that they were operating as a cartel. And it was directly after the Troika had come over to Ireland and was pouring over the banks' loan books saying "these trackers are a disaster....get rid of them" (to be said with a German accent).  NO!  It was a collective decision with intent and it will all come out this year. Asking a guard's opinion in Harcourt Street Garda Station is a bit 'Father Ted' lads.


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## notabene (4 Jan 2017)

Niall Morris said:


> If it wasn't intentional, how is it that all of the main banks took customers off tracker rates during the same time period (end of 2008 into 2009) and by the same methods (not allowing customers to revert to trackers after fixing periods expired or taking them off trackers if they could only afford to continue on interest only payments)?  All 15 banks did it, which indicates that they were operating as a cartel. And it was directly after the Troika had come over to Ireland and was pouring over the banks' loan books saying "these trackers are a disaster....get rid of them" (to be said with a German accent).  NO!  It was a collective decision with intent and it will all come out this year. Asking a guard's opinion in Harcourt Street Garda Station is a bit 'Father Ted' lads.



Niall,  the guard was a guard in the fraud squad in harcourt street they are the ones who would prepare the book of evidence for the DPP should criminal charges arise so the guard does in fact know what they're talking about

You might know something was done intentionally but in a criminal court it is not enough to know it you have to be able to prove it resolutely and that is so it's not a kangaroo court. Obviously not very convenient if you are the tracker holder, but if you were the accused you would appreciate it

When my tracker was taken in July 2008, Ireland wasn't even officially in recession. The money markets had tightened considerably though. The banks, who had been doing their borrowing at short term intervals, of months, rather than the length of your mortgage were suddenly caught short. There was no bailout and therefor no troika until November 2010, long after this started.


I understand you are frustrated but it would be far more helpful if you could add something constructive, rather than shoot your mouth off with inaccurate statements, running down the very hard work other people have put in trying to find any thread that might actually sort it  out.


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## SaySomething (4 Jan 2017)

People/Organisations you can write to to voice your objections/concerns/ask for further investigation. I'll stick all the address details below.

*The Central Bank*
While the Central Bank don't accept individual complaints they do however take on board general observations. You would need to write to the Director of Consumer Protection.

Bernard Sheridan
Director of Consumer Protection
Central Bank
PO Box 559
Dame Street
Dublin 2
D02 P656

*The Consumers' Association of Ireland*
The Consumers' Association of Ireland are engaged in regular round table discussions with the Central Bank as stakeholders. If you have a concern about lapses in consumer protection it's well worth writing to them and asking them to lobby the Central Bank on your behalf. Their council and policy advisor is Dermot Jewell.

Consumers’ Association of Ireland
26 Upper Pembroke Street
Dublin 2.

*Oireachtas Finance Committee*
I've heard members of the committee mention on air that they would be in favour of convening of a specific tracker mortgage hearing/series of hearings. The more people that contact them, the more political will there will be to hold a specific hearing. They also mentioned that it would be beneficial for affected account holders to speak at the hearing and that they should not be limited to the Lenders and the Central Bank. There's huge merit in this because it puts a public face onto the issue, as opposed to stark facts and figures.

Committee on Finance, Public Expenditure and Reform, and Taoiseach
Leinster House
Kildare Street
Dublin
D02 XR20

You can also write to your own local TD (care of Leinster House).

*Office Director Corporate Enforcement*
If you can prove that the bank's actions were in breach of company law, then you can also make a complaint to the ODCE. Proof is essential here. There's a form you can fill out on the website, and make sure you make yourself familiar with the list of FAQ's before you send it in. 
http://www.odce.ie/en-gb/faq/complaints.aspx

For what it's worth, typed letters are very effective. If you have the time, turning up at your local TD's clinic also works very well. Put a human face on the issue if you will.


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## Tedtalk (6 Jan 2017)

notabene - you must be fascinated to read the article by the judge in the examiner today! While I hope it doesn't jeopardise any future legal action, it will certainly frighten anyone in the banks who may have been in certain positions and made incorrect calls back in 2008-2010!!


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## Gen360 (6 Jan 2017)

Hopefully the article by the judge in the examiner today might encourage a few Charles Embry figures to start blowing a whistle or two in the hope of saving their own hide.


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## notabene (6 Jan 2017)

Tedtalk said:


> notabene - you must be fascinated to read the article by the judge in the examiner today! While I hope it doesn't jeopardise any future legal action, it will certainly frighten anyone in the banks who may have been in certain positions and made incorrect calls back in 2008-2010!!



Yes - will investigate again


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## mister32 (6 Jan 2017)

Link to Judge James McNulty article

http://www.irishexaminer.com/viewpo...ail-on-tracker-mortgage-decisions-437875.html

The judge says it takes just one complaint:

_Credible reports of crime must be investigated by An Garda Síochána, once a formal complaint has been made.

It only takes one complaint._


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## Wardy7 (6 Jan 2017)

Great article!


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## Tedtalk (6 Jan 2017)

Im not sure it is that rare, but a judge commenting as a 'citizen of the republic' sounds pretty serious, especially when their judgement means so much. I can't believe it's not causing more of a stir in the media today. All I can say is THANK YOU James McNulty for attempting to push this scandal to another level!!!


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## todo (6 Jan 2017)

Yes an excellent article by James McNulty, its hard to believe the banks have been given so much time to cover their tracks, and continue to be given more time, I'm sure with the six year time limit, a lot of evidence will be "lost"


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## mister32 (7 Jan 2017)

Professor Lame will allow customers to appeal


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## Miakk (7 Jan 2017)

Another angle that has been on my mind is the Competiton  Authority (CA) seem to have never taken any issues with this (at least publicly, as far as I can see) or indeed other banking-wide activities such as the high SVR rates across the board - despite the fact that they are now the Competition and CONSUMER PROTECTION Commission!

A few years ago they were raiding the IFA and the IPU offices with gardai, looking for evidence of price fixing. I work in one of these fields  and am aware that the CA at the time exerted their full legal powers to take and search files, documents etc, were vocal in the media about their "suspicions"...and yet found nothing to support these (or, one could argue, justify their actions).

But when it comes to banking, thousands of customers and millions of euro, they seem to be deaf and mute.


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