# First Active Lost Tracker but switched Mortgage



## smithers (7 May 2016)

I had a first active tracker which i fixed in october 2006, when the fixed rate was up i was told they were no longer offering trackers and that my only options were variable or fixed. I moved to Bank of Ireland the following year as did not think i would ever get a tracker back. I wrote to the central bank recently and then to Ulster bank about the fact that i was never warned that fixing for two years meant never seeing the tracker again. I have received 7 months of letters telling me they are investigating and will come back to me, these letters come out every month or so.

My question is if they do find that i should have been returned my tracker what happens? Can i insist they give me back a tracker mortgage even though i moved banks? Do i get compensation or is it a case of because i moved the mortgage i get nothing? I only moved because i lost the tracker.....


----------



## Monbretia (7 May 2016)

I don't think I have seen any case where UB have actually given back a tracker where you have moved mortgage.   More likely to be compensation of some sort if your complaint is upheld.  How long had you fixed for in 2006?   There is a lot of discussion under various threads here on similar cases, I'm sure some of those involved will be along to give you their info.


----------



## smithers (7 May 2016)

Monbretia said:


> I don't think I have seen any case where UB have actually given back a tracker where you have moved mortgage.   More likely to be compensation of some sort if your complaint is upheld.  How long had you fixed for in 2006?   There is a lot of discussion under various threads here on similar cases, I'm sure some of those involved will be along to give you their info.



I fixed for 2 years in 2006


----------



## Monbretia (7 May 2016)

Trackers finished in mid 2008 in FA but of course that was for new customers.   Most of the maturing trackers at that stage defaulted back to their tracker rate so that if you did nothing and picked none of the options in the letter the loan automatically went back to the tracker it was on,  the letters that went out usually showed the fixed options.   Did you get a copy of the letter you signed when fixing or do you have a copy of the letter that went out on maturity of the fixed with the options.


----------



## rodger (7 May 2016)

Sounds like same situation the individual notabene is in.

I think that was ulster bank as well.

They refused to return his tracker.

I'm that case what the central bank or the ombudsman should do is insist ulster bank pays compensation for the time until now. And return you to tracker at ulster bank.

If they refuse to take you back as a customer due to say underwriting issues then each year they should compensate you to the tune of difference in interest rate that you pay above there tracker rate.


----------



## smithers (7 May 2016)

i have a copy of the fixed rate authority i signed in 2006 which i copied and sent to Ulster bank, it does not say i will loose my tracker

i didnt realise if i had ignored the options letter it would default to tracker, i rang them to enquire why it was not on the letter and they said i was not entitled to one because they were no longer offering them

rodger it would be great if i got compensation up to now even I do hope they don't just refund me up to 2009, it has cost me thousands extra per year


----------



## Monbretia (7 May 2016)

I'd say that was just incompetence on the part of whoever you were talking on the phone to at the time unfortunately, trackers were not an option for new mortgages at that stage or for any existing customer who did not originally have one.   I worked in FA at that time and always advised people that if they just wanted to go back to tracker to ignore the letter with the other options, it never mentioned the tracker on the letters only the other options that were available.  It seemed logical at the time, these were the other options that were offered as the loan would automatically default to what it came from so that wasn't an option to be ticked as such.   I never saw  a fixed rate authority that ever mentioned loosing the tracker after fixing, it certainly was not in those forms whatever they say about it now. 

Mind you at that time very few people were aware how valuable a tracker would become and many were happy to fix again, later fixes seem to be a bigger problem as the loans were suddenly not defaulting to their original rate, a bit of meddling being done I think with the systems.


----------



## rodger (8 May 2016)

It is just another example of the trickery by the banks and exactly why the central bank has instigated a review.

I hope you get the justice you deserve.

What is being said about "if you did nothing it would revert automatically to tracker" makes no sense

You rang up and asked for the tracker option and they said there was none.

The two years expired.

Did you choose an option on their form?

Even if you did they hoodwinked you at that stage. And you still deserve to return to tracker either way.


----------



## Monbretia (8 May 2016)

There was no tracker option on the forms as that was the default on these loans, you couldn't opt for something you were going to get anyway, the options were if you wanted to pick something different such as a fixed or standard variable.   Maybe they were badly worded, I can't remember the exact wording or if it referred to what happened if you didn't pick an option, does anyone have a copy of the fixed rate maturity letter?

But there was no culture in FA branches at that time (2008/09) of hoodwinking customers or actively trying to get them to move from the tracker, the value simply was not known definitely not by frontline staff unless someone on high could see what was coming down the tracks and if they did they were not instructing branch staff to actively target getting people off trackers, in fact it was the opposite until very shortly before trackers were pulled for new customers.   It certainly came later after the absorbtion into UB of FA, loans that should have defaulted to original rate did not automatically so something changed in the maturity settings of these loans.

I am wondering did the OP choose an option from that form too?   Either way you should have gone back to tracker if that is what you wanted to do.


----------



## corktim (8 May 2016)

Monbretia I had a FA tracker in 2006 and fixed shortly after. FRA said I would move to variable after but it also that I had the option of the tracker rate. Wasn't  offered a tracker in 2008 when fixed expired. They told me I had signed a tracker removal letter but nowhere in the FRA did it refer to a tracker removal. 

I think that there was an underhanded effort to get people off trackers. My view is that they were multiple breaches of the CPC 2006.

Seems the central bank enforcement is specifically aimed at FA trackers who fixed between 2006 & 2008


----------



## Gerard123 (8 May 2016)

With respect I would have a much stronger view than it makes no sense, frankly lot of nonsense being talked above.

I, and I am not alone, had a tracker with FA, signed letters in 2006 to fix rate with no mention of loss of tracker, no mention of tracker removal, or anything like that. Yet at the end I was not given my tracker back.  My view is that UB on being the new owner of FA used every trick in the book and plenty not in any book, to deny people trackers.  Absolute nonsense to say that if one was on a tracker to simply ignore the UB letter as one would default back to tracker. It didn't happen, fact is UB decided not to give them back.

They ie UB portrayed the FA letter I signed in 2006 as a 'Tracker removal letter' when it wasn't headed like that, never even used words like removal, cessation of tracker or anything that remotely could be construed as such.  That is the essence of many of the FA tracker rate problems. I spoke to several people in the bank at the time, got plenty of 'sympathy' on the phone, comments like it seems you should have got a tracker back, etc.  All counted for nought.  Wish I had recorded the calls with hindsight.

It seems that finally the CB have identified what happened and the Bank will hopefully be held to account. I also hope that the CB review includes a review of how the decisions were arrived at not to give the trackers back, who made them, how high up, etc.  These were not one off unfortunate mistakes. They were systematic decisions taken to deny a large number of people trackers.  To say otherwise is delusional.


----------



## Monbretia (8 May 2016)

Believe what you like, that was the case in FA, can't speak for UB, the letter presented the options, if you didn't go for one you reverted back or should have to the current rate based on the mortgage type you came from if that was a tracker or a standard variable.  That's the way the product was set up on computer, if the customer did nothing the fixed rate just expired and previous product type kicked in.   Otherwise you would have to contact every one of these customers on expiration to ensure something was done or the account would be in limbo if there wasn't a default on them.  I would like to see one of the letters now as I don't remember the exact wording on them.

There was definitely no such thing as tracker removal mentioned in the fixed rate appendix back in 2006 or even later to the best of my recollection, again I don't know what UB put in letters when they took over.


----------



## Gerard123 (8 May 2016)

I am presenting facts of what happened.  My mortgage was on tracker, fixed and did not go back to tracker. That is not a belief with respect.

In my case, and sounds like many others, it is how UB dealt with people on FA mortgages.  Appreciate you are talking FA only, but that's not the complete story. The key issue is how UB dealt with the FA mortgages.  That is the main point at contention for many people.  Can you not see that?


----------



## Monbretia (8 May 2016)

Of course I can and I totally agree the bulk of the problem lies with UB but the OP was prior to the closure of FA so I was trying to throw some light on the pre UB procedures.    The customer should definitely have gone back to tracker if that is what they were originally on.

Again if anyone has a copy of the FA  fixed rate maturity letters from 2008/09 it would be interesting to see the wording on them.


----------



## corktim (8 May 2016)

Monbreita you are correct that there was no official mention of "tracker removal letter" in the FRA but this is what I have been told it was in writing this year when I complained. Also after doing a data access request there are internal notes to this effect. 

So internally the aim was to take people off trackers but to try and hide it and slip it in on the FRA.

There is a major issue for sure seeing as the central bank have called out specific dates with the FA trackers. They must now clearly know what UB / FA were trying to do.


----------



## corktim (8 May 2016)

I'll post the FRA later


----------



## Monbretia (8 May 2016)

Not the actual Fixed Rate Appendix when switching to the fixed but the one you got detailing the options on expiration of the fixed.


----------



## corktim (8 May 2016)

Ha! This is a very interesting one.

I did my data access request and this is the only document that they have not provided. I questioned them on it and they say they don't hold it which I don't believe. There was another thread here relating to UB "loosing" the same document.

Complaint is currently with the data protection commissioner who is investigating.

Here is the paragraph from my FRA. while it does say I move to the variable which didn't bother me it also states I can take the tracker option on expiry. My fixed expired before trackers were pulled in 2008.

Thought the move to variable was just procedure at the time but know I know different.


----------



## Gerard123 (8 May 2016)

Far from saying anything indicating that the tracker was removed,  the paragraph quoted in the document attached to the previous post actually gives one of the options as being a tracker. How the FSO could deem that to be a tracker removal letter is beyond me.


----------



## emeralds (8 May 2016)

My reading of that paragraph is that you could have chosen to go back to the tracker rate when the fixed expired. Did you not choose to do that?
Or was the tracker at that stage more expensive than the variable?


----------



## Gerard123 (8 May 2016)

Absolutely correct reading and same as my reading.  However UB refused to give an option of a tracker, that's the key issue. They contended that the letter was a tracker removal letter and therefore even if one had a tracker and fixed, because one signed the letter containing that paragraph, they would not provide the option of a tracker.  Consumers who signed such letters did not give up on their default option of the tracker based on that letter or paragraph, yet that is what UB contended.  UB misrepresented FA documentation.


----------



## Sarenco (8 May 2016)

Hi Gerald

Just to be clear, are you saying that you requested UB to transfer your mortgage to the prevailing UB tracker rate at the end of the fixed rate period and that this request was refused?  If so, that looks like a clear cut breach of contract, assuming UB had a tracker offering at the time.

Can I ask why you didn't pursue the issue with the FSO at the time?  Was UB's SVR lower than their prevailing tracker rate at that time?


----------



## Gerard123 (8 May 2016)

Yes but UB contended that they did not do trackers anymore so refused to offer.

I did go to the FSO but he ruled in favour of the bank. The FSO accepted the banks position that the letter with that para was a tracker removal letter.  It was this acceptance by the FSO that was incredible.  I was left in a position where I could not appeal to the FSO, High Court only.  Cost prohibitive.

On the issue of whether it is relevant if a bank offers trackers the FSO has ruled in other cases that if a customer had a right to a tracker, notwithstanding that a bank had the right to discontinue a product, if a customer had a right to a tracker the bank must offer one. A bank could discontinue a product but could not use that discontinuance as a reason to deny a tracker that otherwise a customer was entitled to.

With the FSO accepting the banks position re that being a tracker removal letter, the fact that the bank didn't offer trackers anymore was not one that the FSO addressed in my case.

I have an array of other posts on the site dealing with my FSO case. I spent several years backs and forward with UB to no avail, and my FSO case dragged on considerably.  I had to contact the FSO several times to ask when a decision would be made. I am very clear in my mind that the FSO process was biased in favour of the bank and I consider the operation of the FSO insofar as it related to the investigation of trackers at that time as farcical.

Before I went to the FSO I provided my documentation to two financial advisors,  one of whom is heavily involved in these matters.  I was told by both that my case was black and white and I clearly should have got a tracker.  Reason I got financial advisor advice is I wanted to have third party experience on my case, not be to wasting people's times, lest of all my own.

The mistake I made which I regret is not using the advisor, however given the view of both that my case was clear cut, I did the work myself.  Had I not had a genune case I would have accepted the lack of tracker, always knowing in my heart that it was wrong, but I could do little.

I provided details of my case to the Central Bank last year, with documentation and FSO info to assist with their investigation.  I was also in contact with some other people in the same position who did the same.  The CB acknowledged receipt of the information.


----------



## Brendan Burgess (8 May 2016)

When your fixed rate expires you will default to the SVR, unless you do something.

1) If you do nothing, you will go onto the SVR, and I don't think you have any argument. 
2) If you request the "prevailing tracker", then it's a bit more complicated. 

They could argue that there is no prevailing tracker, although I think that the FSO has dismissed this argument 

They could argue that the prevailing tracker is ECB + 5%, and I don't think you would have much counter argument.
3) If UB wrote to you offering you some options but not a tracker, then it's also unclear. Were they bound to offer you "the prevailing tracker"? By not offering it to you, were they trying to get you to avoid requesting a tracker?


----------



## Sarenco (8 May 2016)

Gerard123 said:


> Yes but UB contended that they did not do trackers anymore so refused to offer.



I think that's your problem and I can certainly understand why the FSO arrived at their decision in your case.

The quoted section from the FRA posted by Corktim is clear that you default to a (non-tracker) variable rate at the end of the fixed term unless you request a further fix or to transfer to the prevailing tracker offering at the time of the transfer.  If there was, in fact, no tracker offering at that time then I would have thought that UB would have been well within their rights to refuse any such request.

This seems to me to be quite a different situation to a number of PTSB cases where there was a right to default to a tracker at PTSB's prevailing rate at the end of the fix and it is unclear what the "prevailing rate" should be in circumstances where the fix ended at a time when PTSB no longer offered trackers.

The Central Bank might take the view that FA did not comply with the applicable regulatory disclosure requirements as they existed at the time that you fixed and might therefore instruct UB to reinstate your tracker.  To be honest, I wouldn't be overly confident of that outcome but I guess time will tell.


----------



## Gerard123 (8 May 2016)

Brendan.

1. They didn't offer tracker despite talking to them and requesting.  This point was not in dispute or disagreement.
2.  As I stated above FSO has Ruled that if a customer has a right to a tracker the fact that a bank no longer provides trackers generally is not a reason to deny a customer their tracker.  They either have a right or do not have a right.  Think this is what you are referring to.
Re the rate, yes it can be tricky.  The FSO ruled on another case that a related mortgage on the same property could be used as a reference rate for what the tracker rate to return to should be. I had that very situation where I had a top up mortgage on a tracker on the same property.
3. They wrote but did not offer a tracker. My contention is I should have been offered one. I was on one, fixed, and had an entitlement. They told the FSO I signed a tracker removal letter as in my earlier post.

Sarenco.  Don't agree nor did the FSO in other rulings.  See 2 above also.  Rulings are in the public domain. I spent considerable time reading the rulings and understanding them.  It's not the consumers problem if the bank doesn't offer them anymore.  It's a matter of contract law and that's what the FSO view was. 

Not comparing to PTSB. I don't have enough info on those to consider and parallels.


----------



## Gerard123 (8 May 2016)

For clarity, the FSO ruled that I signed a tracker removal letter and agreed to the removal of my tracker at the time I fixed in 2006. Earlier post has the wording.  The FSO did not address in his ruling in my case re the matter of UB not doing trackers anymore and did not comment on any tracker rate.

It was the acceptance that the earlier para was a tracker removal letter by the FSO that ended my case, not other matters. Was the earlier para a tracker removal letter?  I think the common view on this site is that it was not.  Nor was it the view of two financial advisors, one of who, is regularly on the site. Not naming as I did not engage him, wish I had!

Interested in your view as to whether the earlier para in your opinion is a tracker removal one?  Thanks.


----------



## notabene (8 May 2016)

corktim said:


> Ha! This is a very interesting one.
> 
> I did my data access request and this is the only document that they have not provided. I questioned them on it and they say they don't hold it which I don't believe. There was another thread here relating to UB "loosing" the same document.
> 
> ...



if you believe they have the form but did not produce it for the initial request, write to them, request it again, give them 20 days to produce it - and then you can make a complaint to the data protection commissioner.[/QUOTE]


----------



## corktim (8 May 2016)

I agree that from reading the attached that I should have been able to go back on a tracker.

Thing is I wasn't offered a tracker when the fixed expired. Went to a branch and was told " we don't do them anymore " so didn't push it. It was only later I figured out what UB were at.

I have had a long running complaint with UB who continue to state that I am not and was not entitled to my tracker. FSO / central bank investigating.


----------



## corktim (8 May 2016)

In my situation trackers were still available but they never offered me the option. It should not be up to me to have to ask for it.

Under CPC the banks are obliged to be clear about what rates are available.

There may be an issue re: prevailing rate but there would have been a specific rate when my fixed expired as they were still offering trackers


----------



## corktim (8 May 2016)

Gerard that is not a tracker removal letter even though UB say it is. 

Came as one letter with the FRA and if I was never to have a tracker again why am I given the option in the attached paragraph


----------



## Sarenco (8 May 2016)

Gerard123 said:


> Interested in your view as to whether the earlier para in your opinion is a tracker removal one?  Thanks.



Well the wording seems clear that you had no right to default to a tracker rate at the end of the fixed term period and you were only left with a right to request a transfer to UB's prevailing tracker offering at that time.  

Given the fact that UB did not, in fact, have a tracker offering at that time, I suppose the FRA could be described as a "tracker removal letter".  I don't think anything turns on it.

If you had a right to revert to a tracker at the end of the fixed term then I certainly agree it wouldn't have mattered whether UB no longer had a tracker offering at that point - you might have had a debate about what was the appropriate margin in such circumstances but there should have been no debate about whether or not you were entitled to revert to a tracker.  

Unfortunately, you don't appear to have been entitled to revert to a tracker - you only had a right to request to transfer to the prevailing tracker offering at that time.

Frankly, I don't think it's tenable to argue that contractually UB should have offered you a tracker rate when there was no prevailing tracker offering.

To be honest, I don't understand why your financial advisors were so confident about your position.


----------



## rodger (8 May 2016)

It would be deceitful in my opinion to say you can choose the prevailing tracker and then say there is no prevailing tracker because we discontinued them so you're not getting one. 

I would hope you guys are the reason the central bank started an enforcement investigation against ulster bank recently, as announced by RBS.


----------



## peemac (8 May 2016)

You fixed in October 2006.

Central bank code of conduct came into force in Aug 2006.

Read up on the code of conduct (google cb code of conduct 2006) and you will find that the bank did not adhere to the code of conduct and this should give you hope.

The ombudsman simply did not even reference the code of conduct in any case and that was a blatant error on their part.

In the ongoing tracker investigation the code of conduct is of immense importance and ulster bank have had an investigation opened on their behaviour in relation to the code.


----------



## Sarenco (8 May 2016)

corktim said:


> In my situation trackers were still available but they never offered me the option. It should not be up to me to have to ask for it.
> 
> Under CPC the banks are obliged to be clear about what rates are available.
> 
> There may be an issue re: prevailing rate but there would have been a specific rate when my fixed expired as they were still offering trackers



Your contract provides that it is in fact up to you to request an alternative mortgage product to avoid defaulting to their SVR at the end of the fixed term.

I don't see any contractual obligation on the part of UB to notify or otherwise communicate the alternatives to you and there is certainly no specific requirement to do so under the CPC.

Was there any particular reason why you didn't request UB to transfer your mortgage to their prevailing tracker offering at the time?  You clearly had a contractual entitlement to do so.

Having said that, I would have thought that there is a reasonable chance that the Central Bank would agree that a failure on the part of UB to notify you of the available alternatives prior to the expiry of your fixed term was in breach of the general principles set out in the CPC.  

Not clear cut by any means but definitely worth making a submission to the Central Bank if you haven't already done so.


----------



## Sarenco (8 May 2016)

peemac said:


> The ombudsman simply did not even reference the code of conduct in any case and that was a blatant error on their part.



Not really.  Enforcing the CPC is beyond the remit of the FSO but compliance with the then CPC disclosure requirements is certainly central to the Central Bank's current examination.


----------



## Gerard123 (8 May 2016)

Thanks for the various views. Clearly UB did not meet the requirements of the code. I highlighted this to the CB.

Also I was on a tracker, fixed, letter at the time indicated I could return to a tracker, albeit wrapped up in language such as prevailing tracker, etc. Language should have been crystal clear, it was not. I was led to believe I would simply get my tracker back. I dealt with people in the branch and on the phone and genuinely these all indicated same thing.

Being on tracker at time of fixing that should have been my default surely also?

Also I fail to understand how the Bank can persuade the FSO that a letter which includes as one of the options a prevailing tracker is a tracker removal letter. Anyone see the contradiction and illogical thinking in that position?  It was all wrapped up in confusing terminology which only became more apparent as UB then used the confusing and contradictory wording to argue years later that it was in fact a tracker removal letter.

Anyway I have shared my case and info with CB leaving it with them.

Clear from recent info re enforcement action in relation to FA mortgages that there is an issue and hopefully the CB have seen through the smoke, contradictory positions, non compliance with the code, etc, as nothing more that an attempt by UB to deny FA customers a tracker.

Thanks again.


----------



## corktim (8 May 2016)

UB in my view did not adhere to CPC under the following:


A regulated entity must ensure that all information it provides to a consumer is clear and comprehensible, and that key items are brought to the attention of the consumer. The method of presentation must not disguise, diminish or obscure important information. 

SUITABILITY

30 A regulated entity must ensure that, having regard to the facts disclosed by the consumer and other relevant facts about that consumer of which the regulated entity is aware:

a)  any product or service offered to a consumer is suitable to that consumer;


b)  where it offers a selection of product options to the consumer, the product options contained in the

selection represent the most suitable from the range available to the regulated entity; or


c)  where it recommends a product to a consumer, the recommended product is the most suitable product for

that consumer.


----------



## Sarenco (8 May 2016)

Are you arguing that the fixed term product was not suitable in your circumstances or that important information about the product was somehow disguised, diminished or obscured?

The wording of the relevant clause itself looks fairly clear and unambiguous to me but you would obviously have to look at it in the context of the contract as a whole and the circumstances in which the revised loan agreement was put in place.


----------



## corktim (8 May 2016)

No I am referring to when my fixed rate expired. Trackers were still available and I was not offered one even though the FRA advised I could take the prevailing rate. Again I thought prevailing was whatever the ECB was at the time plus the my loan offer that stand it would never be higher than .95% over ECB.

My reference is to point 2 under suitability. The bank should have outlined the options available to me and not left it to me to try and find out.

Anyhow the central bank seem to be of the same opinion as they are taking enforcement action against in where customers on a tracker fixed during this period and were not returned to a tracker.


----------



## Brendan Burgess (8 May 2016)

There have been some cases where the FRA said that the mortgage would default onto a tracker at the end of the fixed period. The lender claimed that they no longer did trackers. The FSO said that this was no excuse and ordered the lender to give the person back their tracker. 

The particular case is not at all clear as some people are claiming. I know the case I would make as the borrower. I also know the case I would make as the lender.  The wording is clear in that you default onto the SVR unless *you *request to transfer to the prevailing tracker rate.  As you made that request and as you were told that they were no longer available, I think that the FSO will find that you should have been offered the prevailing tracker rate, whatever that was.  The word "prevailing" makes it unclear though. Ulster Bank can validly argue that there was no prevailing rate. It would have been much clearer if they told you that you would default onto your original tracker rate.


----------



## corktim (8 May 2016)

Brendan i take your point but crazy to think it's ok to put the onus back on the customer.

Refer again to pint 2 on suitability in CPC above. All options should have been outlined to me so if I had the option to take a tracker it should have been offered to me when fixed expired.

Prevailing is unclear I agree.


----------



## Sarenco (8 May 2016)

Brendan Burgess said:


> As you made that request and as you were told that they were no longer available, I think that the FSO will find that you should have been offered the prevailing tracker rate, whatever that was.



Perhaps I'm misunderstanding the posts but I thought corktim's problem was that he *didn't *make that request.  If he had there wouldn't be a problem - UB were still offering trackers so there would be no ambiguity as to their prevailing terms.  No?


----------



## corktim (8 May 2016)

I did enquire at branch but was told they were not offering them anymore. I didn't look into it at the time and who would think that a bank was trying to do you out of a tracker so blatantly.


Yes they were still offering trackers at the time.
My view still stands that they should have offered the tracker to me when they wrote to me advising that my fixed was expiring. They had no problem advising me of my fixed rate options.


----------



## Sarenco (8 May 2016)

corktim said:


> No I am referring to when my fixed rate expired. Trackers were still available and I was not offered one even though the FRA advised I could take the prevailing rate. Again I thought prevailing was whatever the ECB was at the time plus the my loan offer that stand it would never be higher than .95% over ECB.



But you didn't enter into a new contract or arrangement when your fixed term expired so the provisions of the CPC regarding the suitability of products, etc., don't arise save as regards your fixed-term contract.

Your (fixed-term) contract itself specified what rate you would default to at the end of the fixed rate period in the absence of any action on your part.  It is the suitability, etc., of that fixed term contract that's relevant.


----------



## corktim (8 May 2016)

I disagree. Every lender writes to its customers before fixed rates expire advising them of their rate options.

UB wrote to me but did not advise of my tracker option. This is also covered under  CPC suitability. Don't tell me that it's ok for a bank to hide better rate options on customers....


----------



## Sarenco (8 May 2016)

corktim said:


> I did enquire at branch but was told they were not offering them anymore. I didn't look into it at the time and who would think that a bank was trying to do you out of a tracker so blatantly.



Now I'm confused.  I thought you said UB were offering trackers at the time - is there some ambiguity around this point?  

If you can prove that UB staff misrepresented the factual position to you at the time then you should definitely make a formal complaint.


----------



## Gerard123 (8 May 2016)

Cases may be slightly different.  What the CB is investigating are not individual cases as far as they communicated to me.  My understanding is that they are looking more at systematic issues. Did UB set about getting people off trackers by not doing things properly in accordance with documentation, with the code, etc.  Over to the CB. 

Corktim. From my reading it seems clear that they should have given you the option of a tracker but didn't.


----------



## corktim (8 May 2016)

They were still offering them but they didn't offer me one. My fixed expired in Aug 08 and they stopped offering trackers in September.
I can't prove the verbal conversation but it is widely know that trackers were still available in Aug 08.
There was no mention of a tracker when my fixed expired. This is why I'm so angry because they told me they were not doing them anymore and I should have been offered the option when they wrote to me advising of my other rate options pre expiry of the fixed.


----------



## Gerard123 (8 May 2016)

Sarenco said:


> If you can prove that UB staff misrepresented the factual position to you at the time then you should definitely make a formal complaint.



Absent a recording how would one prove this?  Impossible.  Look at what was required.  Did the Bank meet its obligations under the code?  Appears not.  Wrong to make it the consumers responsibility to prove these things.  Code is there to protect the consumer surely?  If he was entitled to the option of a tracker and the bank did not provide it in their communication then surely the bank was wrong. Could be deliberate, could be innocent. Doesn't matter in my mind. The code requires the bank to do things properly, it did not. End of as far as I am concerned.


----------



## Sarenco (8 May 2016)

corktim said:


> They were still offering them but they didn't offer me one. My fixed expired in Aug 08 and they stopped offering trackers in September.



Ah, ok, now I think I understand the factual position.

So FA did in fact write to you outlining your options before the expiry of your fixed rate term but didn't include a tracker option in that communication.  You queried this at the time but were told by branch staff that FA no longer had a tracker offering and now you believe that this was factually inaccurate - that FA did in fact have a tracker offering at that time.  Is that all correct?

I don't know exactly when FA stopped offering trackers (I think it was sometime in September 2008 as you suggest) but if you can demonstrate that FA did in fact have a tracker offering at the time that your fixed term expired then I would suggest that you write to the relevant UB unit (copying the Central Bank) explaining the chronology of events and why you believe that FA did not fully observe its contractual obligations to you.

Frankly, I think you are wasting your time advancing arguments based on the CPC.  It's simply not relevant.

Do you have any idea what margin over the ECB rate FA were offering on trackers at the time?


----------



## Monbretia (8 May 2016)

FA stopped offering trackers for new mortgage applications in June/July 08, can't remember exact date but those already issued a loan offer had until Sept to draw down.


----------



## rodger (8 May 2016)

Couple of points that some people seem to be missing:

Customers of FA who fixed should have the option of a tracker regardless whether still available to new customers or not. That was the arrangement at the start of the FRA.

There was a miscommunication at the end of the fixed rate period. Some might say a trick by FA. On the one hand the legality stipulated the customer needed to indicate they wanted to move you tracker. They did verbally but were told it was not an option. On paper they did not choose tracker because it was not presented in the paper work as an option! To me what FA did was disgraceful.


All this talk about prevailing rate. Hold the horses. Prevailing refers to the varying ecb rate.

Otherwise it's some kind of rate lottery as we have seen at PTSB.

The customer has a rate agreed at the start of the contract. That is ecb + done margin. The margin is not subject to change. If that was the case the definition of prevailing would need to be defined as such. And I have never seen such a definition.


----------



## Sarenco (8 May 2016)

Monbretia said:


> FA stopped offering trackers for new mortgage applications in June/July 08, can't remember exact date but those already issued a loan offer had until Sept to draw down.



Hi Monbretia 

That timing doesn't seem to quite correspond with media reports at the time.  

According to the Herald on 14 July 2008, UB and FA still had tracker offerings at that time but increased the margin offered over the ECB rate to 2.00% and 2.25% respectively.

http://www.herald.ie/news/struggling-banks-withdraw-tracker-mortgage-option-27878682.html

The Indo didn't report that UB and FA had withdrawn their tracker offering until 23 September 2008.

http://www.independent.ie/business/...s-of-rbs-withdraw-tracker-loans-26479007.html


----------



## Monbretia (8 May 2016)

Well that's just my recollection, it is a good while ago,  I remember the initial withdrawal of trackers particularly because I was actually in hospital in mid June 08 and was off work for 4 weeks and when I went back to work the whole scene had changed, trackers were gone for new applicants and existing offers only had a set length of time to draw down, to my recollection that was end Sept but there could have been an extension to Dec, there often was for ending products such as certain fixed rate offerings but it doesn't seem likely that this particular one would have got an extension if they were trying to stop people drawing them down.   I remember nothing but co-operation between branches/head office to try and get as many people drawn down in time as possible.


----------



## Sarenco (8 May 2016)

Rodger

The FA contract very clearly does not provide that the borrower will default back to the original tracker rate (or the prevailing tracker rate) on expiry of the fixed term.  

On the contrary, the contract clearly provides that the borrower will default to a standard variable rate (not linked to ECB) unless the borrower requests another fix or requests to transfer the mortgage to FA's prevailing tracker offering.

Hence the importance of determining whether or not FA had a tracker offering at the relevant time.


----------



## Miakk (8 May 2016)

I  am another customer affected by this FA tracker to fixed (2007-2009) to SVR debacle, and my case is identical to some of those presented here. I've also discussed it previously in other threads and with other posters on here. There are also parallels on some aspects of some of the other cases discussed here eg the "loss" of key documents such as a copy of the options letter at the end of fixed rate (which I never signed, by the way) from my data access request. I did request to return to tracker both at the time of fixing AND at the end of the fixed rate period but it turned into a scenario of my word vs theirs. To add insult to injury, Ulster Bank have been untruthful and deceitful in their responses to me and to the (former) FSO's office - and yet he sided with them in my case in 2011. I have continued to fight this over the years in what ever way I saw fit, and I hope that in whatever small way this has contributed to this review. If nothing else, the CB action gives me back some hope and some sense of justice.


----------



## Brendan Burgess (8 May 2016)

Sarenco said:


> Frankly, I think you are wasting your time advancing arguments based on the CPC. It's simply not relevant.



Hi Sarenco

I don't understand why you think that the CPC is not relevant? 

Is a lender not obliged to behave in accordance with the CPC? 

If it's found that UB did not comply with the CPC, then I would imagine that the complainant has a case.

By the way, this is a general point and not relating to just the case in this post.

Are you saying that the CPC has no force?  I have argued that the CPC requires lenders to treat customers fairly. I have argued that charging existing customers with the same criteria as new customers higher rates is not fair and therefore is in breach of the CPC. Forget for the moment whether you think that is fair or not - are you saying it's just irrelevant? If so, what is the point of the CPC?


----------



## rodger (8 May 2016)

It's not the issue whether FA had a tracker offering or not.

And I never disputed what the default option was.

So you're talking at cross purposes to what I said.

What I am saying is the guys tried to indicate their preference to move to tracker as required in the original FRA.

At the end of the fixed rate period they were required to opt for tracker which they did verbally. And were verbally refused.

As to whether the bank had an option to discontinue offering existing customers is the point.

You seem to think they could enter into an agreement for two years with an option of a tracker at the end. And the bank pulls the rug from under their feet during the two years. And says actually that's not an option.
You think that's a possibility!!!
I find it incredible anyone would entertain that idea.


----------



## Sarenco (8 May 2016)

Hi Brendan

I was only talking about this specific case.  

A regulated provider is certainly obliged to comply with the CPC as a regulatory matter even if the provisions of the CPC are not enforceable by a customer in any court.

Corktim was arguing (as I understand it) that FA was in breach of the CPC by not offering him a more suitable product option (a tracker) prior to the end of the fixed term. However, Corktim wasn't actually being offered or recommended any new product at that time that could be assessed from a suitability perspective.

There was no new agreement or arrangement - the default rate was set out in the fixed term mortgage - so the only product of relevance from a suitability perspective was the fixed-term mortgage itself.

That's why I think the key question is whether or not FA had a tracker offering at the time.  If they did then Corktim had a contractual right to request to transfer to their prevailing offering.  If they didn't, well, there's no prevailing offering to which he could have transferred.


----------



## Sarenco (8 May 2016)

rodger said:


> It's not the issue whether FA had a tracker offering or not.



That's precisely the issue.

The contract provides that at the end of the fixed term a borrower can request to transfer to the prevailing tracker offering.  If there is no prevailing tracker offering at that time then there is no tracker product to which a borrower can transfer.

This is completely different to a situation where a borrower can opt for a tracker at the prevailing rate at the end of a fixed term (as is the case with many PTSB contracts).  

You can argue about what is meant by the prevailing rate but there is no doubt but that the lender is required to make a tracker available in these circumstances - even if the lender no longer offers trackers to new customers.


----------



## rodger (8 May 2016)

If that is the case and what you're saying sounds reasonable, then there is the consumer protection argument that it was not flagged very well that the prevailing offering might be zilch. I mean it suggests to me something that might vary up and down but not disappear completely.

But another approach might be what did the original terms offer?

Can the FRA override those terms in a single letter?

If the original terms set out a tracker for the life of the loan then it seems like the bank was sneaking something into the mix with this FRA.


----------



## Sarenco (8 May 2016)

Yes, a single FRA can amend the terms of the original loan agreement.  The relevant extract from the fixed-term contract looks perfectly clear to me and I don't see anything disguised or deceptive in the wording.

I think it is far fetched to think that any lender was drafting their contracts back in 2006 with any expectation that tracker offerings would be withdrawn within the life of any fixed-term contract written at that time.

Totally different considerations were at play in the summer/autumn of 2008 and there were certainly press reports at the time that some lenders were cold calling borrowers with attractive fixed-rate offers specifically with a view to luring them off trackers.  If there is any truth to these rumours then, in my opinion, the Central Bank should throw the book at any institutions or officials involved.


----------



## Gerard123 (9 May 2016)

Acknowledge the prior comments, however in fairness I don't think one can be so definitive without looking at all the facts and circumstances.  There were no definitions of what prevailing meant, time of transfer was not defined, etc in the letter.  There was no warning that if you were on a tracker that it would not automatically go back onto it, the tracker should have been the default option surely?  There are critical terms and statements that the bank has now sought to rely on and yet were not defined or clarified at the time in 2006.  I am seriously puzzled as to how someone can now state that the "relevant extract ............ looks perfectly clear to me". Would they have been so clear to you in 2006?  

Would it not have been reasonable to take it in 2006 that you would simply return to whence you came when the letter that you signed included wording indicating a tracker?  To now apply a 2016 mindset to a 2006 document saying that the term tracker was wrapped up in other terminology including the word prevailing, etc, and argue that it was intending that customers on trackers wouldn't return to them and that it was perfectly clear is a step, in fact many steps, beyond what the reasonable consumer would have been expected to do back then.  (I use the term reasonable in the context of law, i.e. the reasonable man test, not applying the phrase to any poster). 

Recall the ad campaign re the guy on the bus saying he didn't know what a tracker was???????  That was the environment in existence.  Everyone is of course more knowledgeable now on trackers, but one must apply the 2006 mind-set in considering the matter, not a 2016 mind-set.  There was also the matter of the CPC. 

I don't think anyone is reasonably saying that in 2006 that FA deliberately disguised the wording or were deceptive at that time.  I would have no hesitation in accepting that this was not the case.  However, it is post the UB takeover that UB seemed to have then taken the FA 2006 documentation, inferred a new or enhanced meaning that was never intended at the time, and made it seem as if the FA documents were perfectly clear when they were patently not.  The deception and inappropriate use of documents occurred post then when UB sought to justify its decision not to return FA customers who were on trackers, customers who could have reasonably expected to go back onto trackers at the end of the fixed term. 

I don't disagree with your second para re 2006 and the drafting of contracts.  However, does that thought and context not also apply to consumers?  Given the environment back then and the wide spread use of trackers, is it therefore reasonable that consumers would be expected to be tracker legal experts?  To now put the onus back on customers to prove conversations, etc, is not fair or reasonable. 

The critical point is what UB did with the FA documents and the selective use and misrepresentation of them.  These posts are not anti FA.  

Finally, these matters are rarely clear cut or definitive, if they were there would not be near as many appeals or enforcement orders.


----------



## Sarenco (9 May 2016)

Gerard123 said:


> the tracker should have been the default option surely?



The FRA certainly could have provided that the borrower would default back to the tracker at either the original margin or the prevailing margin at the end of the fixed term and such a provision certainly wouldn't have been uncommon in other FRAs at that time.  Unfortunately, the FRA in this case clearly provides that the mortgage defaults to a standard variable rate (not linked to ECB) unless you request another product offering at the end of the fixed term.

I don't think there is anything ambiguous or unclear in this regard in the contract wording.



Gerard123 said:


> The deception and inappropriate use of documents occurred post then when UB sought to justify its decision not to return FA customers who were on trackers, customers who could have reasonably expected to go back onto trackers at the end of the fixed term.



Could you clarify what "deception" or "inappropriate use of documents" occurred after the UB takeover?

My comments are limited to the wording from the FRA as previously posted - is there any other relevant documentation or factual circumstances?


----------



## Gerard123 (9 May 2016)

Sarenco said:


> I don't think there is anything ambiguous or unclear in this regard in the contract wording.



The FSO stated in writing to me in its final ruling letter that the Bank (UB) had confirmed in a letter to the FSO that the letter I signed with the para containing prevailing tracker was not enough to amend the interest rate of the Complainant's loan.  This is fact, I have it in writing from the FSO in their findings.  If the wording is clear to you fair enough, the Bank have stated in writing to the FSO the above which hardly suggests a clear letter/para?

The Bank/UB took another letter I signed a month beforehand, sought to join the two letters together and argued on the basis of both that I was not entitled to a tracker. Unbelievably the FSO accepted this stating that while both documents were signed on different dates the FSO was satisfied that the two documents formed the basis of the fixed rate agreement between the parties.

The two letters had entirely different paragraphs and wording regarding what would happen after the end of a fixed rate period.  The first letter did not state that at the end of a fixed rate period that the standard variable rate applied.  However in their communication with the FSO UB misquoted the relevant para from the first letter.  Critically when UB set out the para to the FSO it inserted the critical word 'standard' into the para implying that the para said that the svr applied at the end of the fixed term.  If did not state this, it said variable rate, of which a tracker is a variable rate.  This misrepresentation of key phraseology was repeated twice by the Bank in communications to the FSO.  Was this deliberate or an error - one can decide, twice??

Unbelievably, the FSO seems to have completely ignored this misrepresentation, error (whatever label is appropriate) twice by the Bank to it. I do not know if the FSO saw this as important, however it must have, as in its ruling it said that the documents were clear that the svr would apply at the end of the fixed term.  The documents did not state that, they actually contradicted each other with two different paragraphs.  I was given no opportunity to counteract this as the FSO decision was made and final ruling given to me.  My only option would have been the High Court.

Alongside these written communications would have been verbal conversations with Bank personnel who gave assurances re the tracker, etc.  Sorry I didn't record them, then again who did?

I am just highlighting that frequently things are not as clear as they might seem with the benefit of hindsight and 10 years of discussion on trackers.  As far as I can see one of the central issues is how UB took the FA documentation and used it inappropriately.  UB did accept in its written submission to the FSO in my case that the para/letter containing the phrase prevailing tracker was insufficient and inadequate at best.

I have shared information and documentation with the Central Bank last year.


----------



## Sarenco (9 May 2016)

Sorry Gerard but I think I was very clear that I was only interpreting the wording of the quoted extract from the FRA and not any other documentation or surrounding factual circumstances.  

I really don't know why you are getting agitated at my comments.


----------



## Gerard123 (9 May 2016)

Apols, not meaning to get agitated but it does require preciseness, that's what I was seeking to do. I have edited some of the 'sharper' comments as wasn't intending offense.

I do believe that sites like this one are important, and Brendan B has been an important voice in the debate on trackers, so I am only seeking accuracy and context.

(Also having spent several years on this matter, hundreds of hours, researching, being stonewalled by the Bank repeatedly, etc, passion may bubble over a little perhaps??)

Anyway I will leave it with the CB.


----------



## Miakk (9 May 2016)

Sarenco: as they say, hindsight is 20/20, and arguing the contract law aspects all you want does not change the fact that

a) myself, Gerard123 and others have all had the same issue

(I reiterate that in my case I specifically asked at the time of fixing  for the option of return to tracker the the end of the fixed rate and was assured all was in order - I even delayed signing docs until being assured by FA staff that it was)

b) if not accepting the layman/consumer angle, more significantly one has to acknowledge that Central Bank considers there is enough of an issue to carry out enforcement.


----------



## Sarenco (9 May 2016)

Miakk

Again, I was simply offering an interpretation of the contractual wording as posted. 

I have no access to any other information/documentation of relevance to any individual case and I have no agenda other than to assist posters in appropriately framing their arguments and to avoid "chasing ghosts" on arguments that I not believe have any realistic chance of succeeding. I obviously appreciate that many posters are emotionally invested in this issue.

I have no particular insight into the Central Bank's review or investigation beyond what they have stated publicly.


----------



## Monbretia (9 May 2016)

Would still like to see one of the FA maturity options letters from 2008ish, did anyone get a copy of their one?


----------



## Gerard123 (9 May 2016)

What letter is that exactly, don't understand the phrase FA Maturity options letter - do you mean the letter signed in 2006 on entering the fixed rate or the letter that the Bank provided close to when the fixed rate expired?


----------



## Monbretia (9 May 2016)

The letter sent out when the fixed rate was expiring showing the options available.


----------



## rodger (9 May 2016)

Gerard123

I agree 100% there is a world of a difference between variable rate and standard variable rate.

All the banks have used this trick to push customers off tracker.

If you can find the original document and c show the UB version was doctored by UB and give this to the central bank as evidence of deceitfulness.

Regards


----------



## corktim (9 May 2016)

Trackers were still on offer as per media reports below until late September 08. To be clear, my fixed end in Aug 08 and wasn't offered the option.

Aware that I would not automatically go on to a tracker but should have been offered the option.

This was all set up to get people off trackers plain and simple.


----------



## corktim (9 May 2016)

Just looking at last posts.

My FRA also described the rates in two different ways. It's mentions " the variable rate" when referring to my tracker and later when describing my expiry rate options goes onto describe the SVR as " standard variable rate"

They are obviously taking about two different products here. Why would you refer to the SVR in two different ways in one letter.


----------



## Milo4444 (29 Dec 2016)

Hi I was directed to this post yesterday. Had FA tracker taken out in 2005 took out top up loan in 2007 fixed both for 2 years. Fixed rate ended March 2009, top up went to tracker and I queried the main loan (same wording on the fixed as earlier in this post, tracker at prevailing rate at time of transfer if requested) told this is not an option at this time. Was never told we dont do trackers as they gave me one at 1.15% on the top up loan. Kept calling got no where and gave up mortgage went to variable rate, registered complaint last year and got a letter to say out of 6 year time limit. Registered another complaint to say the prevailing tracker was 1.15% at this time as that's what I got on my top up. Requested all documentation 3 times but none of the packs contain the options that I would have got before the fixed rate expired and I don't have a copy. I know there was a tracker option on the top up but not the main mortgage and this prompted me to call them at the time. Has any former FA customer had any letter from UB in the past week or any update on this clause?


----------

