Class Action Litigation BOI + Bristol and West Mortgages


Mark Alexander - Published on 05/03/2013
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Class Action Litigation BOI and Bristol and West Mortgages Increase DifferentialAs you have probably heard, Bank of Ireland (BOI) and Bristol and West have advised borrowers who took tracker rate mortgages with them prior to 31st October 2004 that they are increasing their margin to 4.49% over bank base rate.

Many landlords are concerned that if Bank of Ireland are allowed to get away with these changes other mortgage lenders will follow their lead.Property118 were first to reveal this breaking news and to begin taking action – see this thread where well over 200 comments have been left.

Landlord Action, a legal services firm with a strong pedigree in the Private Rented Sector have agreed to help. They have acted in more than 20,000 evictions and for over 2,000 letting agents. Since 1999 their free helpline has received over 210,000 calls. The founder of Landlord Action, Paul Shamplina, was one of the high profile contributors to Property118 in our formative stages. Justin Selig, the principal of the The Law Department which is a Law Society registered firm recently became a partner in Landlord Action and it is Justin who will be acting in this matter.

At this stage I am not aware what the “cause of action” will be but the following issues are all being considered:

  1. Mortgages were sold as a tracker at a margin over base rate which borrowers believed to be a fixed margin and which subsequent annual mortgage statements from BOI seems to have also supported
  2. Margins have not been adjusted previously and annual mortgage statements imply that the agreed margin over base will be maintained until the end of the agreed mortgage term
  3. Incentives offer by BOI to switch to another mortgage lender, offered in January this year, contained no mention of any intention to change the margin over the bank base rate charged on these mortgages
  4. Terms relied upon by the bank not meeting FSA and advertising standards principles whereby they should be clear, fair not  misleading
  5. The terms being quoted by BOI were not pointed as being of importance by brokers or solicitors to borrowers
  6. The terms being relied upon are fundamental to the contract but are not sufficiently highlighted in such a way that borrowers or even their professional advisers were able to comprehend their importance
  7. Irish Nationals are not being subjected to the increased margin
  8. Ambiguity of whether the “differential” actually applies to the tracker margin
  9. Contract terms being relied upon not being allowed post FSA regulation of mortgage lending as of October 2004

The above may not be an exhaustive list.

The comments section on the original thread will soon be closed but please feel free to continue to post your thoughts and updates in the section below this thread.

To register your interest in taking part in the class action please complete the form below and we will forward the information on to Justin Selig, the solicitor who will be dealing with this matter.

The deadline for submission of instructions has now expired. However, it may still be possible to join the representative action subject to paying Court fees and an additional cost to cover associated administration. For details please email : carla@cotswoldbarristers.co.uk

 

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Comments

  • Mark, just picked up on this thread. Ive held off my letters to BoI in amazement! Ive been through all my offers & contracts etc from 2003 today, right through to 2009 & it makes interesting reading. A lot of things just don’t stack up.


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  • @DarrelG – if you would like to explain further and scan/email the documents to me I will happily pass them over to Justin Selig.
    Mark Alexander recently posted…The Mortgage Works backs down on benefit tenants rulingMy Profile


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  • TWITTER DISCUSSION – can only be viewed properly on the thread


    Mark Alexander recently posted…Class Action Litigation BOI + Bristol and West MortgagesMy Profile


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  • INITIAL FINDINGS

    I have now had the opportunity to review the following terms and conditions:

    “Bristol & West PLC Residential Mortgage Conditions 2001” and “Bank of Ireland Mortgages – Mortgage Conditions 2002”.

    If your mortgage is covered by either of those terms and conditions then your chances of a successful legal challenge against the Bank of Ireland based on the actual wording of the conditions will be limited.

    The relevant clauses say something along the lines of:-

    they can increase the differential (margin over base rate) because:-

    “…we wish to increase the amount we receive from borrowers in order to maintain a prudent level of profitability or reserves..
    ..we wish to respond to the actions of our competitors..
    ..because it is costing us more to administer borrowers’ accounts..
    ..because we believe that general economic factors have increased the risk of shortfalls on borrowers’ accounts or on accounts of the same type as yours and we wish to increase the amount received to protect us against that risk.”

    The bank will be able to defend its recent actions based on the fact that any one of those conditions are fulfilled.

    There may be other terms and conditions which are different to the ones I have just mentioned and I would be happy to review those (on a no obligation basis) if you want to email them to me at info@lawdepartment.co.uk.

    So what are the options for borrowers, who have received the letter from the Bank of Ireland?

    There are basically two options:-

    1 to launch an action based on the Unfair Terms in Consumer Contracts Regulations 1999 on the basis that whilst there may be explicit terms in the mortgage document allowing them to increase the margin, this clause is inherently unfair; or
    2 bring a claim against your solicitor or broker for failing to highlight these terms at the time the mortgage was taken out.

    We will obtain Counsel’s advice as to whether a claim can be brought under the Unfair Terms in Consumer Contracts Regulations 1999 and update you further.


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  • the terms as set out in the ‘initial findings’ seem pretty clear to me. if borrowers dont read the terms then surely they only have themselves to blame? the only scope i see is that there is no mechanism for calculating the increase in margin and so that may be an unfair term.


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  • Not quite as simple as this……………………my mortgage advance referred to the power contained within Section 4(10) Mortgage Conditions 2002 to increase the differential. When I asked BOI for a copy of my Mortgage Advance they sent me that and a copy of the Mortgage Conditions 2001…….which applies to residential mortgages(not BTL) and has no clause 4(10)….and which they said “was in use at that time”. So my Mortgage Advance referred to a document that was not provided and in any case was the wrong one. So how can borrowers make informed decisions if they are sent the wrong paperwork?


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  • http://www.bbc.co.uk/news/business-21720212

    I am sure you will all be pleased to read the following article if you have not already seen it

    http://www.bbc.co.uk/news/business-21720212


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  • UPDATE

    We are expecting the response today from Martin Wheatley, Managing Director at the FSA, to the letter sent by Mr Andrew Tyrie MP last week. Watch this space!

    Justin Selig will also be sharing some breaking news on the proposed Class Action litigation against Bank of Ireland today
    Mark Alexander recently posted…The mis-selling of IRHP – interest rate hedging productsMy Profile


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  • IMPORTANT UPDATE

    Just to update everyone on the progress with our proposed class action against the Bank of Ireland.

    We are awaiting a response (hopefully later today) from Martin Wheatley, the managing director of the FSA to the letter sent last week by Mr Andrew Tyrie MP, chairman of the treasury committee, questioning what action the FSA proposes to take against the Bank of Ireland.

    With the financial support of Property118.com and the GOOD Landlords Campaign, we have instructed an experienced barrister at 11 Stone Buildings.  The barrister specialises in Banking Law and professional negligence so is well placed to support our case.  He was involved in a claim against an Irish bank who wanted to change the interest rates they were charging a borrower from a base rate loan to a Libor loan. We have asked him to advise on the likelihood of success of a case brought against the Bank of Ireland.  We have also asked him to advise on whether there is any scope in pursuing the solicitors who advised the borrowers at the time the loans were taken out.

    Once we have the opinion from the barrister (and subject to it indicating we have a strong chance of success) we will be convening a meeting of Bank of Ireland borrowers to discuss the proposed next course of action.

    We have to date received indication from approximately 100 borrowers that they are interested in joining the action.


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  • CLASS ACTION UPDATE: Our barrister would like to see copies of any promotional material anyone received from the Bank – either Bank of Ireland or Bristol and West at the time their mortgage was taken out. If anyone has copies of the promotional material, please would you email it to me at info@lawdepartment.co.uk or post it to The Law Department, 7a Wellington Road, London NW10 5LJ. Many thanks, Justin


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