Tracker Mortgage Class Action Update

by Mark Alexander

16:47 PM, 30th September 2013
About 5 years ago

Tracker Mortgage Class Action Update

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Tracker Mortgage Class Action Update

Tracker Mortgage Class Action Update

630 people have completed our Tracker Rate Class Action Registration Form as I type this update. 

Of those, 300 had signed up to the Bank of Ireland Class Action campaign which we started in early March 2013. The remaining 330 have signed up in the last week since the announcement from the West Bromwich Building Society that 6,700 landlords will have their tracker margins increased by 2% on 1st December 2013.

Our campaigns were referenced in The Telegraph on Saturday and The Sunday Times yesterday. We have also been referenced in several blogs and Facebook groups.

I came in this morning to a very full inbox and whilst I have endeavoured to reply to everybody, please excuse the brevity of my responses if you are one of the people who contacted me, I’m sure you will understand.

The complaint letter template has been well received and I’m hoping that West Brom will have a very heavy mailbag this morning and for the foreseeable future.

On Twitter, a hashtag is being used to drive interest, it is #MortgageMugging – I didn’t create the hashtag but it does explain how we many of us feel to let’s all use it. We are asking Twitter users to visit the hashtag regularly and to re-tweet all relevant tweets posted by others.

I had a long telephone conversation with Justin Selig this morning in which I explained that we have gained some momentum but my fear is that we could lose that if people don’t have clear direction and a very good reason to sign up and pay up now.

My biggest question at the moment is this;

What is the “early bird” incentive for people to commit to fund raising?

If all affected borrowers benefit equally, whether they have contributed or not, then human nature will more often than not be to do nothing. I suspect this is what the lenders are relying upon and it is my biggest fear.

Litigation isn’t going to be cheap and it appears I may well have significantly under-estimated costs when I predicted that we will need to raise around £100,000. The cases have similarities but they are not the same, therefore we could be fighting two separate Class Action cases. It is still unclear whether one test case case against each lender is the way to go or whether we should bring one case against each bank to represent all affected members of each Class Action.

The reality is, we need further advice from Counsel, however, bearing in mind that only £10,000 was raised to fund the initial campaign we have made very good progress so far.

We have a barristers opinion on the BoI case and we also know where we stand with the FCA having placed Counsels 32 page report in front of them outlining the legal bases of our grievances. We have not yet had a response from the FOS but I don’t think we should be holding our breath on that one.

During our conversation Justin and I agreed that we should seek further advice from Counsel on what we should do next. As I expected, Justin was a step ahead of me and reported that a QC in the same chambers as our barrister has agreed to provide further opinion free of charge! I have no idea how Justin pulled that one off but we all owe them both a debt of gratitude for that.

Once we have the responses from Counsel Justin will be in a position to seek quotes for legal fees insurance. That will give us a much clearer indication as to how much money we will need to raise.

I have also asked Justin;

Is there a way to ensure that only those who contribute to the fundraising will benefit? If so, could the fund raising be phased to give ‘early birds’ an incentive, e.g. first 300 in pay X, next 300 in pay Y, everybody after that pays Z?

We don’t know how much we need to raise because we don’t yet know what we are going to do next. We need to be clear about this before we recommence fund raising. What we do know is that we need to obtain Counsels opinion on the West Bromwich Building Society case and advice from the barrister on how to proceed, this will cost around £4,000.

Specifically in relation to the West Bromwich case we need to know,

  • What is counsels opinion of the legality of the proposed actions by West Bromwich BS?
  • What constitutes a professional investor? The case of the OFT vs Foxtons was unclear but West Bromwich have decided that it is anybody with three or more mortgages. What is the legal relevance of this?
  • Can we get an injunction to delay the increase pending a Court Case? If so what’s the cost?
  • Can/should affected borrowers use the Small Claims Court to make claims for breach of contract? If so, what do they need to do? Could an advice pack be created and sold to raise funds?
  • Should affected borrowers write to their solicitors asking them to comment on the advice (or lack of it) they provided at the time at the time of arranging the mortgage(s). Should these solicitors be advised to put their PI insurers on notice? If so we need letter templates. Could these be included in the same advice pack?

I am also concerned about what happens if we have a further round of fund raising for either case and we don’t raise enough money to take the case through to its final conclusion. What should we do about getting started and/or refunding money paid? It’s a ‘chicken and egg’ scenario because logic suggests that more people will join the fight once it gets started properly and media coverage increases, but to what extent? Do we commence proceedings against Bank of Ireland and/or west Bromwich BS and effectively gamble on more people signing up? If they don’t, and we exhaust all of the funds raised, what then?

Do we use new money raised to put more pressure on the FCA? For example, we could instruct Justin to engage Counsel with a view to writing a response to the FCA expressing our concerns that firstly they are not taking an impartial view of this and secondly, contrary to what they reported earlier in the year to Andrew Tyrie MP, this is not an isolated incident and could potentially cause carnage if other larger lenders follow suit. My opinion is that the FCA’s response is a whitewash.  They have simply used the BoI response to our case as a reason not to pursue it.  They have not obtained their own independent advice so the FCA is not acting as an independent arbitrator.  The BoI response is a note from their barrister who they asked to find ways round our argument.  It is not an independent review of the actions of BoI. The FCA has not given us a chance to respond to the BOI arguments. They have simply taken the BoI version and gone with it.  My own gut feeling is that we should press this issue and seek support from Andrew Tyrie MP because he clearly thinks the actions of BoI were unfair and is therefore likely to feel the same way about the actions of West Bromwich BS.

The above really is the tip of the iceberg in terms of the many questions and concerns I have at this stage. However, it is important for everybody to know what we are up to behind the scenes.

The bottom line is that we are going to need a lot more support whatever happens. Therefore, I am asking everybody who has registered to date to persuade at least two more people to register for the Class Action in the next week and then get them to do the same. By the time that’s done, Justin should have more answers for us from Counsel and the direction we need to head in should be far more clear to us all.

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



Comments

Kevin Ivie

17:06 PM, 30th September 2013
About 5 years ago

I agree with Mark that we are likely to need a lot more money to be sure to get to the end game and I, for one, am quite happy to pay significantly more than £100 to get things moving if we have fewer than the target number of subscribers to the West Brom test case. I also agree that there should be some benefit for "first movers" ready to commit, but frankly I think we will need all the subscribers and funds we can get along the way as we move forward to a court decision as I am sure West Brom will be banking on the class action fizzling out for lack of funds and committment.

Allan Wadsworth

17:52 PM, 30th September 2013
About 5 years ago

Watch out if your negative equity. West Bromwich just might get an up to date valuation done then how much over 75% or 85% will you have to pay! and of course it might be a new Mortgage!!!
I for one will be keeping my head down- but will pay for others to raise there heads and thank them very much.

Darrell C

18:00 PM, 30th September 2013
About 5 years ago

Mark, can I suggest you email everyone who has registered with an invoice attachment for £200 payable to Justins law firm. Can he set up a PayPal account so we can pay quickly. Sending cheques is to slow.
£126k is raised in double quick time.The press can then be told fighting fund in place.
Remember its £160 each after tax relief.
Then we can have QC opinion on WB pretty quick as well

Kev Brooke-stowe

18:36 PM, 30th September 2013
About 5 years ago

Hello Mark,
Please can you set up a paypal account like the great idea already suggested, so we can pay simply, I tried the other day and failed, it needs to be easier.
I don't even have a BTL mortgage. But hate bullies!
Please keep me informed directly.
Thanks Kev

18:38 PM, 30th September 2013
About 5 years ago

Forgive me if this question has been answered already but 2% this week what is stopping them putting it up to 10% next week or as high as they like in the future? There appears to be no control mechanism and yet they insist that we have all signed up for this!

Ollie Cornes

18:40 PM, 30th September 2013
About 5 years ago

I'd avoid PayPal like the plague. They're not a bank, money sent via paypal can be withdrawn after the fact by the sender. Even worse they usually take 4-5% of the cash. If you want donations publish bank details and get it direct - cheaper and it's guaranteed cash.

I'll seriously considering putting some money in, but I'd need to see specifics. Who is acting, exactly what the aims and scope are. At the moment although I hugely appreciate efforts made, if it comes to putting cash in I want to know exactly what the goal is, and the plan to get there. I appreciate there are no guarantees.

My understanding is BoI could only increase the margin over base because their terms allowed. What exactly is the wording of that term? Do MX, BM etc loans contain similar terms? This information is important to get a handle on how wide this problem is.

Darrell G

19:04 PM, 30th September 2013
About 5 years ago

Mark,
Just read with interest your info above. Let say enough was raised in a fighting fund to take on the BoI, regardless of whether or not everyone affected 'chipped in' Should the class action be successful would BoI be liable for costs?

Badger

19:32 PM, 30th September 2013
About 5 years ago

What happens if those affected by this go on strike and cancel their direct debits in favour of a standing order for the current monthly payment amount?

Now that would clog up the system at the other end!

Jeremy Smith

19:45 PM, 30th September 2013
About 5 years ago

I have two mortgage accounts with a co-op subsiduary. They are at 0.75% above base rate.
If these two banks are successful in hiking their rates, I can see mine going up too!!
Can you not take action against just one first, then if successful, the other may back down if then also threatened with court action?
I would be very happy to pay my share now, but it must be a system which doesn't loose some of the cash along the way, as mentioned, paypal would 'steal' 4-5%.
Could we use one of those schemes used by charities, like if you're doing a sponsored run, for instance, people can contribute online, do they allow all the cash to be kept for the cause?

Sam Collett

20:45 PM, 30th September 2013
About 5 years ago

Mark, it's great to hear you have had so much interest. Obviously, the unknowns are a great source of fear for people. Is there not some kind of ballpark figure for this legal work?

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