# Tracker public interest legal action



## mister32 (22 Feb 2017)

Interesting that John Mc Guinness was looking for solutions yesterday to reinstating trackers when the central bank is clearly  incapable of achieving this as shown after 8 years tackling this.
Full credit to the finance committee including John Mc Guinness, Michael Mc Grath, Pearse Doherty, Rose Conway Walsh.
Where was FG yesterday?

Some suggestions offered in the discussion between John and Padraic Kissane

Customers stop overpaying and pay the correct amount
Banks restore all affected customers and worry later about who shouldn't be restored
Banks are given a deadline say June 1st to resolve the issue for all customers
What's striking is: in this country there seems to be no official way to solve this problem. Individuals taking legal action against a bank seems to be the only official route to justice.

Maybe the problem is the central bank?

However given the "public interest" side to this, given 20,000 people at least affected is there some option for the state to take legal action against banks on behalf of the people. The DPP ? Not talking about the criminal behaviour of bankers. Just in the context of getting justice for customers.


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## Gen360 (22 Feb 2017)

I would imagine the State is reluctant to get involved with any sort of legal action against the banks. Firstly because they are a major shareholder in some of them. Secondly if they start posturing against the banks it may put off any potential buyers.


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## Dan Murray (22 Feb 2017)

mister32 said:


> Maybe the problem is the central bank?



The CB was hugely at fault in the run up to the financial crisis and has been equally inept at managing the resolution of this separate, but related, debacle. In my opinion, their governance of this issue has been appalling. The key questions are:

1. What would an effective Regulator do now to resolve the legitimate concerns of consumers in a timely matter? This includes filling in the unforgiveable communication/information deficit.

2. What needs to happen for point 1 to take place?

I agree with mister32 that the Finance committee was impressive - I was particularly encouraged by the focus displayed by McGuinness.


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## Sligolive (22 Feb 2017)

Perhaps the independent auditors, appointed by the banks to provide oversight of the banks tracker examination projects, should be invited to
present to the oireachtas committee. It seems that there is very little clarity on the status of the project across the industry and perhaps these individuals are well placed to provide such insight.


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## Lightening (22 Feb 2017)

Customers stop overpaying and pay the correct amount
Banks restore all affected customers and worry later about who shouldn't be restored
Banks are given a deadline say June 1st to resolve the issue for all customers
Let's call it option a b or c in the order above. 

Option c not working! We all thought this was going to be over last September deadline. no end in sight and problem seems to be escalating. As Padraic said some banks are still telling him he is wrong. 

Seems therefore it has to be option a or b and that would end the scenario fairly promptly.


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## Dan Murray (22 Feb 2017)

Hi Sligolive,

There are many possible next steps - including the one you've suggested.

But why continue to skirt around the issue? Why not ensure the CB does its job properly? Can someone explain this to me please?


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## Gen360 (22 Feb 2017)

As we are in an information vacuum we can only speculate what is going on inside the banks right now. If the banks primary focus here is to return  everybody to there tracker then that would be fairly simple. UB have around 2000 cases and 200 people supposedly working to return them to tracker. Given the year plus they have been working on this it should now be resolved. However if they are trying to avoid putting people back on their tracker they are now picking through every bit of paper looking for loopholes which would take considerably longer.

The "Independent" auditors definitely need to be called in front of the committee to see what is going on.


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## mister32 (22 Feb 2017)

It seems to me the central bank has a number of responsibilities which are often conflicting eg the responsibility to ensure strong banks with healthy balance sheets versus the responsibility to protect the consumer.

In this situation the protection of the consumer is being treated as inferior to the role of supporting the banks.

Maybe there needs to be a separation of roles if the consumer is to get any justice?


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## mister32 (22 Feb 2017)

I agree gen360 about the information vacuum.

Perhaps when governor Lane is next in the finance committee meeting rooms he can be asked to reveal the terms of the tracker review?

And also explain why each bank has employed hundreds to review contracts instead of spending the money restoring customers.


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## Gen360 (22 Feb 2017)

Why can't this be sorted by Independent Arbitration rather than the High Court? The banks have unlimited resources to fight a case in the Courts and the threat of losing and carrying their legal costs will scare off any potential group taking a case against them. Given the time and money they have spent pouring over contracts during the CB review they surely have discovered numerous get outs that could scupper any class action.

As far as I know both parties must agree to Independent Arbitration. I don't see that happening.

The banks really do seem to have all the Aces.


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## Dan Murray (22 Feb 2017)

mister32 said:


> It seems to me the central bank has a number of responsibilities which are often conflicting eg the responsibility to ensure strong banks with healthy balance sheets versus the responsibility to protect the consumer.
> 
> In this situation the protection of the consumer is being treated as inferior to the role of supporting the banks.
> 
> Maybe there needs to be a separation of roles if the consumer is to get any justice?



Another excellent post Mister32.

There is huge overlap between our positions. Look at my questions again in post number 3 - all I'm asking is what needs to happen (for an orderly and timely end to be put to this mess) and what needs to be done for this to happen? If the CB is too conflicted, what not find a resolution to this? The bottom line is that if the CB cannot perform this element of its mandate appropriately, this function should be given to an authority of similar status who is both willing and able to do just that. I appreciate that this may be closer to the previous model.

It is time that we stop making excuses for the Central Bank. So I repeat:

1. Let's establish what needs to be done?

2. What needs to happen to get it done?


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## notabene (22 Feb 2017)

@Gen360 no provision for class action in Ireland unfortunately - all affected customers would have to take cases on their own

Agree it is doubtful that Banks would agree to arbitration as most refused mediation in FSO, different, but if they are refusing that why would they then agree to go to arbitration

My own opinion is that the banks who are falling in line behind PTSB and AIB are hanging back somewhat in order to see how they settled their cases and use these as a precedence, but that is pure speculation.


A further issue here - I have been in touch with the ODCE over the last few months to see if they can investigate the bank for fraudulent trading - they are adamant that the bank does not fall under their remit as they are regulated by the Central Bank - even having quoted back to them the relevant section of Company Law they refuse to investigate and have said that I would have to go to the guards and make a formal report myself in the hopes that they would then investigate. It is very much my own impression that they aren't even clear on what they are actually being asked to do

I'm not an expert but that was not my understanding of what the ODCE does - they are to regulate company law, and a bank is a company operating under the Companies Act in Ireland.   A further example of road blocks in trying to find some way to hold them accountable and get it sorted.


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## Gen360 (22 Feb 2017)

@notabene Quick scan through the ODCE web site shows that they have previously investigated banks. Are banks now exempt from the companies act? Surely a company is a company regardless of the regulator. If this is the case an insurance company regulated in Gibraltar for example can not be investigated by the ODCE. This does not make any sense.


*23rd July 2004*

In the Matter of The Companies Acts 1963 to 1990 and in the Matter of National Irish Bank Limited and in the Matter of National Irish Bank Financial Services Limited, High Court Record Numbers 1998 / 89 Cos and 1998 / 132 Cos

Judgment of Mr Justice Kelly delivered on 23rd July 2004 concerning such orders as were appropriate under Sections 11 and 12 of the Companies Act 1990 following the delivery to the Court (on 12 July 2004) of the Report of the Inspectors Appointed (Under Section 8 of the Companies Act 1990) to Investigate the Affairs of National Irish Bank Limited and National Irish Bank Financial Services Limited


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## Sligolive (22 Feb 2017)

Hi Dan Murray - it is very likely that the central bank is doing a good job on this issue at the moment. However, the central bank's hands are tied as to what it can disclose and unfortunately the commercial banks are capitalising on this and other matters.


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## Sarenco (22 Feb 2017)

Sligolive said:


> However, the central bank's hands are tied as to what it can disclose...



In what way?


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## SaySomething (22 Feb 2017)

One of the last questions asked at the hearing last night was how the Oireachtas could move things forward for the customers at the moment. I came away feeling that they are very open to suggestions and comment from the public on this. If you think you have a solution or a suggestion that is worth considering you can get in touch with them by emailing fincom@oireachtas.ie

The way I see it there are two ways in which you can get a bank to act:
1. Inflict financial damage
2. Inflict reputational damage

1. Financial Damage - Some suggestions

Limit a bank's fine to €X (million) if they resolve their customers' issues before December 2017 (this was the original deadline set by the Central Bank). Thereafter apply the late payments interest rate on the fine and/or a rising scale of penalties for every day/week/month that the bank doesn't resolve the issue.
Require the banks to meet the costs of a number of test appeals to the High Court.
Set up a completely independent arbitration panel to sit over the entire process for appeals, funded by the banks. 

2. Reputational Damage - Some suggestions

Invite affected customers of the banks to make statements on the record to the Finance Committee, along with selected members of the press.
Require the CEO's and boards of the banks to sit before these hearings to witness what their banks have done in person.
Have an online register of the banks, the number of customers they 'mischarged', and personal testimony from customers (anonymous and personal info redacted if appropriate).
Require the minutes of board meetings and mortgage lending meetings in the banks, particularly during periods 2007-2010 be made public. 

_The fly in the ointment is the reluctance of the Central Bank to make the scope and guidelines for the tracker mortgage investigation public and to set a deadline for completion. _
It's astounding that only the banks, their auditors, and the Central Bank is privy to the information. Especially considering thousands of us who are having our mortgages investigated have no idea how this is being carried out. Nobody else has access to this information, why the closed shop? It has been suggested that maybe the Central Bank can't make comment because they haven't completed their investigations yet. That's no reason to stop them from making the scope available to the public. 

At some point in November/December 2016 the Central Bank decided to move the goalposts from completion by December 2017, to all affected customers being contacted by the middle of 2017, with compensation/redress etc following on from there. That is a big difference in position and nobody has explained why. 

The Governor of the Central Bank is not due before the Finance Committee again until April, I think it's 21st of April. That's 2 months away from now. I can't see the Central Bank changing their tune between now and then. The best way to get things moving is pester/people power. Email the committee (address above), contact your local TD/Senator, tell your story, ask questions, write to your bank, don't give up. The more of us that do this, the more the issue will be acted upon.


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## Tedtalk (22 Feb 2017)

I just hope a shareholder challenges Richie Boucher about BOIs behavior in relation to trackers from the floor on Friday morning.


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## lukas888 (22 Feb 2017)

Padraig Kissane made reference twice during his appearance that the central bank were precluded from updating on progress until the investigation was completed.


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## Sarenco (22 Feb 2017)

lukas888 said:


> Padraig Kissane made reference twice during his appearance that the central bank were precluded from updating on progress until the investigation was completed.



Any idea why that would be the case?

I'm pretty familiar with the Central Bank's statutory confidentiality obligations - they certainly wouldn't preclude the Central Bank from disclosing the process/arrangements with the banks.

The "closed shop" nature of this whole exercise is completely unacceptable IMO.


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## lukas888 (22 Feb 2017)

He was quite vague and never made it clear why the Central Bank are not giving updates.


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## EbsLoannotrafor (23 Feb 2017)

All very disheartening , that the terms of reference of investigations are not revealed of  cb review , can it be got by foi ?freedom of information request or alternatively is their a case to be taken to Europe in relation to this , this might wake up the cb and the banks when this appalling situation gets beyond here , affecting reputation etc . Could either of these be pursued? I am ebs , could anyone let me know if you get ebs tracker back and how?


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## Sligolive (23 Feb 2017)

In my opinion the priority is for an effective review to be completed rather than the quality of information which the central bank is releasing throughout the review process. In my opinion, premature release of information can compromise the effectiveness of such reviews.


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## Dan Murray (23 Feb 2017)

Sligolive said:


> In my opinion the priority is for an effective review to be completed rather than the quality of information which the central bank is releasing throughout the review process. In my opinion, premature release of information can compromise the effectiveness of such reviews.



I do not agree with this - again it's excusing the CB for its abject failure in managing this.

The CB found out about this issue c. 7 years ago. It is simply not acceptable that this debacle has dragged on for so long.


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## SaySomething (26 Feb 2017)

Ger Deering (FSO) is before the Finance Committee in the coming week.


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## SirMille (16 Mar 2017)

notabene said:


> @Gen360 no provision for class action in Ireland unfortunately - all affected customers would have to take cases on their own



True, while there is no concept of a class action in Ireland, there is this:

_Irish law makes no provision for class/collective actions. However, there are two procedures which in practice operate as a form of class/collective action. These procedures are:_

_Representative actions._
_Test cases._


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## Gen360 (16 Mar 2017)

@SirMille Just did some googling for Representative Actions and Test Cases and found this-

http://www.lawreform.ie/_fileupload/CPS 2004 and older/CPMulti Party Litigation.pdf

The parts detailing Consumer Claims and Derivative Actions makes for interesting reading.


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## SirMille (20 Mar 2017)

I am not a lawyer, but it sounds like it would be of no use to us.


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