I’m normally a fan of Stephen Donnelly’s but have to wonder if there is some bias in his article this week.

In looking at this from a compliance perspective (because the allegation is really that regulations are being broken by the bank) we will consider three key pieces of legislation

The consumer credit act 1995
The consumer protection code 2012
The code of conduct on mortgage arrears 2009-2011

All of which are statutory codes with full enforcement powers built into them.

It starts with this paragraph ‘IF your bank phoned you up to four times a day, would you feel harassed? Imagine, as your mortgage arrears mounted, that you had maintained contact with your bank, as you’re meant to do, but they kept calling’.

The person was apparently being harassed, called ‘early morning and late evening’ – which I assume is an a way of alluding to wrongdoing but not actually stating whether section 46 of the Consumer Credit Act was being broken or section 8.14 of the Consumer Protection Code.

We also can’t look at a single point of law in isolation, 8.14(a) expands stating that it doesn’t cover communication that has been requested or agreed in advance with the consumer.

Let me say from the start – it may seem like banks have nothing else to do other than ring people but they only call a single borrower multiple times if something matters, it isn’t for the craic.

If a borrower had submitted a plan that they thought would save their home and the bank thought otherwise and they went ahead and sought possession without calling the borrower multiple times it would equally make a dour headline.

It also seems clear from the article that the person doesn’t actually answer the phone to the lender, while this may cause stress, it isn’t of itself something offensive, and not answering the phone is probably the reason that they continue to seek contact with the borrower, engage with them and deal with them sympathetically as per the rules of engagement set out in the CCMA (and also the MARP/MARS areas).

The reason the Central Bank relented on the ‘3 attempts only’ rule wasn’t regulatory capture, it was because it created an operational nightmare. Turn this on it’s head and ask yourself if you could run a business where you can only contact clients that it is important for you to deal with to succeed and you are restricted to three contacts made up of letters, or phone calls whether they answer or not? And if by not leaving a voicemail it meant you could try again some other time?

And what if that client instead, wasn’t a prospective sale, but one that had already bought and had an outstanding bill and you believed they were not answering their phone? Regulatory capture? Being in business has taught me that in pursuing debts to the firm that it has nothing to do with any regulation whatsoever, it’s about recoveries, albeit the bank is the default ‘bad guy’ in this story.

How bad are PTsb? Bad enough that they haven’t repossessed the house despite it going into its 5th year of arrears issues (and also due to the Start/Gunne ruling one would think). Perhaps the borrowers should in this instance actually answer the phone and try to find a solution that doesn’t involve them being left to rot with mounting arrears or the bank to chase a debt it simply won’t ever realise.

If Mr. Donnelly thinks that reversing the number of times a creditor can call a borrower in arrears (because there is some moral judgement in there which deems a creditor call is somehow wrong) then why not expand that to all businesses and not discriminate on banks alone? All transactions irrespective of provider – because a utility bill collections call is of itself no more pleasant (the only difference is the sums involved). Make it universal and it shows that the idea is ill thought out.

The second suggestion is to seek sanctions on qualified persons (which is a Central Bank designation) that if you break a rule you are banned from working in any bank in Ireland. A tad draconian? Again, applying the logic of making it universal would show that if you applied this to every sector that soon everybody would be banned from everything. Ban a driver for a single speeding offence? Ban a pub out of business for selling to one single minor?

Indiscretions are part of reality, we don’t have to like them, in fact, we should aim to eradicate them, but not with methods which hinge on damning a person out of a livelihood.

And of course, there are the untold elements of this story, every time I read this kind of thing I ponder that more than the story itself because there are always two sides and counter arguments which aren’t told.

My suggestion to this couple? Answer your phone, it isn’t that hard, ask the person calling for their name, to verify the time of day and the date, then ask how many times on record that they have contacted you.

They might answer ‘this is the first time this month’ to which they should respond, ‘ok (person name), thanks for that, I can’t talk right now, call me back in five minutes’ – and then do the same on the next call and state that the third call is the one where you will actually have a full conversation.

hey presto, you have made it so that if they do call you again after the third call that you should rush to pick up the phone because if it is them you have a valid Financial Services Ombudsman complaint to lodge.