# Some borrowers have only themselves to blame for losing their trackers



## cremeegg (22 Feb 2017)

Trigger warning. People of a nervous disposition who lost tracker mortgages please read no further. 

In the 2000s the banks offered tracker mortgages, which with the benefit of hindsight were excellent products for the customer, indeed I would suggest they were guaranteed to be good for the customer. 

Some people took these mortgages, often remortgaging to avail of the opportunity to get a tracker, because they understood that they offered a guarantee against rate hikes at the lender's discretion. Some people took these mortgages because that is what a broker or bank offered, without really understanding the nature of the tracker.

Roll on a few years and the banks began to realise what a good deal the customer had got at their expense. The banks tried by different means to get the customers off those trackers. Any one who understood what they had got ignored these offers and kept their tracker. Only people who thought they could do even better by fixing or whatever came off their tracker.

Many people fixed for a set period. The banks then refused to put them back on the trackers, some by getting them to sign away their rights to a tracker, some by not offering a tracker again when the fix period expired.

Where people gave up their tracker because they accepted what they thought was a better offer, I don't see why they are automatically entitled to get the tracker back.  

If they had kept the tracker in the first place this situation would not have arisen. Now they expect the taxpayer supported banks to compensate them for their poor judgement.


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## Tedtalk (22 Feb 2017)

I disagree with your comments  cremeegg. 

In our case we fixed when we had an option to tracker. We fixed because if the rate increased any further in '06 we would lose our home. We have subsequently been crucified as a young family by the SVR since our fixed rate ended in '09. There was no shrewdness on our part, the decision was driven by the significant mortgage repayments. I hope this gives you a better perspective for future posts!!


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## Tedtalk (22 Feb 2017)

Ignoring my case cremeegg-so your saying the 20,000 potential re-instatements equals poor judgement? Your about 5 years too late for comments like that!!!


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## Gen360 (22 Feb 2017)

When I fixed through my branch in 2007 I was advised that it was the right thing to do as the only way the ecb was going was up. Of course the banks don't do advise and it was up to me to distinguish between advise and friendly words. People were really up against it before the rates increased and really had no choice but to fix. If the rates had kept increasing the banks interpretation of contracts would be very different.


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## jpbyrne (22 Feb 2017)

Re cremegg's question: why they are automatically entitled to get the tracker back

There is a very simple answer: because the contract between the customer and the Bank (that the Bank's lawyers drafted) says they can.


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## notabene (22 Feb 2017)

@SaySomething agree with all of the above - will email now


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## Freshstart (23 Feb 2017)

Can't help but feel offended by your comments Creme egg. Your first comment suggests this debacle is all of people's own doing. However it's just not the case the everyone "gave their tracker up". The finger of blame can be pointed no where but at the banks who defrauded customers and broke contracts.


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## cremeegg (23 Feb 2017)

Freshstart said:


> However it's just not the case the everyone "gave their tracker up".



Fair enough. Obviously most people who had a tracker mortgage still have it. Can you explain how some people who had tracker mortgages no longer have them.


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## Freshstart (23 Feb 2017)

Yes. In my own case we began our mortgage on a fixed rate but were contractually entitled to tracker on expiry. I never willingly signed any rite away I was denied it.


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## SaySomething (23 Feb 2017)

To put it as simply as possible @cremeegg the tracker mortgage 'debacle' is mainly due to the following:

1. Customers took out a tracker mortgage where the tracker rate was included in the contract. It included terms such as 'for the life of the loan" or "for the full term of the mortgage".
2. Customers signed a temporary fixed rate arrangement with the understanding that the loan would revert to the contractual tracker rate once the fixed rate term expired.
3. Those who did sign a temporary fixed rate arrangement were not informed at the time of signing that this would prevent them from returning to their contractual tracker rate.
4. When the fixed rate term expired the bank failed to return them to their contractual rate.


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## cremeegg (23 Feb 2017)

SaySomething said:


> To put it as simply as possible @cremeegg the tracker mortgage 'debacle' is mainly due to the following:
> 
> 1. Customers took out a tracker mortgage where the tracker rate was included in the contract. It included terms such as 'for the life of the loan" or "for the full term of the mortgage".



What a pity the borrowers didn't stop there


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## emeralds (23 Feb 2017)

We have a tracker with bank of Ireland (was ICS) which we took out in 2005. We never once switched to anything else. Wonder are there many like us? Mind you we were never induced to switch or contacted to say that fixed  was a better option...


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## Sophrosyne (23 Feb 2017)

cremeegg said:


> Where people gave up their tracker because they accepted what they thought was a better offer, I don't see why they are automatically entitled to get the tracker back.



Are people who legitimately lost their trackers automatically entitled to get their tracker back?


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## Andy836 (23 Feb 2017)

SaySomething said:


> To put it as simply as possible @cremeegg the tracker mortgage 'debacle' is mainly due to the following:
> 
> 1. Customers took out a tracker mortgage where the tracker rate was included in the contract. It included terms such as 'for the life of the loan" or "for the full term of the mortgage".
> 2. Customers signed a temporary fixed rate arrangement with the understanding that the loan would revert to the contractual tracker rate once the fixed rate term expired.
> ...



Your comment #3 makes no sense.

Either the amendment removed the contractual right to revert to a tracker on fixed expiry or it didn't.


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## Sophrosyne (23 Feb 2017)

Andy836 said:


> Either the amendment removed the contractual right to revert to a tracker on fixed expiry or it didn't.



Correct.
Therefore, it should be simple enough to identify those where it did and those where it did not.


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## Gerard123 (23 Feb 2017)

Andy836 said:


> Your comment #3 makes no sense.
> 
> Either the amendment removed the contractual right to revert to a tracker on fixed expiry or it didn't.



Not black and white. No 3 makes perfect sense and is one of the main issues underlying the tracker issue.  If it was a simple issue it would have been solved long ago. 

As a FA customer the fixed rate agreement provided that I had option to return to prevailing tracker.  Nothing else in what I signed indicating otherwise. Nothing about signing away tracker rights.  The latter would have been inconsistent with providing a return to prevailing tracker. When I went looking for it I was denied the tracker.


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## mister32 (23 Feb 2017)

Not every contract is black and white.

But when there is ambiguity, the advantage should lie with the customer because they are the lesser party.

Be realistic. The banks are taking advantage of the customer. 
How are they getting away with it?


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## odyssey06 (23 Feb 2017)

Borrowers have only themselves to blame. They should have anticipated that their bank was being run by unprincipled lying weasels who would not stop at any opportunity to cheat and swindle them, and should have ignored the temptation of short term cheaper rates as it left them highly vulnerable to the full scale of tactics which the weasels were willing to deploy, including breach of contract, "losing documents", lawyering up, ... to reference some of the comments from AAM posters on their dealings with banks on this matter.
They thought they were dealing with people who just happened to work in a bank... not weasels who would strategically set out to nudge people away, by fair means and foul, from trackers.
Also, they thought that if the banks did try to swindle them, that they could initially rely on the government regulatory bodies fighting their corner...


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## Lightening (23 Feb 2017)

@cremegg! Many people fixed for a set period. The banks then refused to put them back on the trackers! - correct!!

Many people fixed their Variable (tracker) for a set period! The banks then refused to put them back on trackers!


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## Sarenco (23 Feb 2017)

I spent some time this evening scrolling through mortgage threads from 2006/07 to see if there was much discussion at the time on the applicable roll-off rates under fixed term contracts.  I was trying to see if I could get any sense of borrower expectations or understandings at the time in this regard.

Out of hundreds of threads, I only came across a single thread where there was any discussion at all on roll-off rates -
http://www.askaboutmoney.com/threads/tracker-or-2-year-fixed.20114/

This strikes me as odd as it was absolutely obvious to me from reading other threads at that time that there was a clear understanding of the differences between trackers and other variable rate mortgages. The famous Central Bank ad seems to have worked!

As an aside, I also found it sobering to read so many threads at the time asking what lenders were offering 100% mortgages.


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## mister32 (23 Feb 2017)

I started with a 25 year tracker with Aib

In the offer letter there was an option to fix for a fee of €63

I was 100% certain that by fixing I was pausing the tracker.

And at the end of the fix period I would revert to the exact same tracker.

I know what happened: the economy crashed, the banks were bailed out. 

Decency went out the window.

The banks clung to anything that would help their balance sheets.

Disregard the customer.

Now the customer is looking to get justice.

But who is prepared to help?

Yes FF. Yes Sinn Fein. 

Not the government.

Not the central bank.

The central bank inadvertently brought on the original crash and they want to protect the bank balance sheets, not support the customer.


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## Sarenco (23 Feb 2017)

mister32 said:


> I was 100% certain that by fixing I was pausing the tracker.



Presumably that was on the basis of your contract wording - right?

If you are 100% certain that you have a contractual right to a particular rate then why don't you sue AIB to enforce that right?

Talk is cheap...


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## Lightening (23 Feb 2017)

Quote!
This strikes me as odd as it was absolutely obvious to me from reading other threads at that time that there was a clear understanding of the differences between trackers and other variable rate mortgages. The famous Central Bank ad seems to have worked!
Unquote!

No it didn't! That's rubbish! 

My tracker contract never mentioned the word tracker only "variable".

My fixed rate roll off (months later not years) had the same definition of variable as the original variable (tracker). 

Where is the clarity!

perhaps the more savvy back in 2006/7 was using this forum! But thousands didn't!


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## mister32 (23 Feb 2017)

Firstly, I have never sued anyone before.

My resources don't match the bank.

I have raised the issue with ombudsman.

I am awaiting the outcome of the central bank review.

If the above two don't work for me then yes I will sue.

If the Irish courts don't give me the result I want then I will go to European court.

So it is an ongoing process

My first reaction was disbelief.

Then the ombudsman failed to act quickly.

Then when I asked a few solicitors they dismissed the idea without even looking at the documentation.

At the time when it happened I had financial difficulties and spending money on solicitor fees was one expense too far.


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## Sarenco (23 Feb 2017)

@Lightening 

There were literally dozens of threads back in 2006/07 on switching to a tracker from a variable rate.  Look back at the threads from that time yourself if you don't believe me.

I'm afraid I can't help it if you didn't understand what a tracker was.  There was certainly a considerable public information campaign at the time to educate consumers.

And I'm sorry but I just don't buy the argument that anybody would really have thought that a reference to a variable rate in a contract with no mention of the applicable margin over an underlying reference rate actually referred to a tracker. 

You are obviously free to hold a different view.


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## joe351980 (23 Feb 2017)

what if the customer new exactly what was in their contract I.e. on expiry of fixed term a tracker rate to apply. The bank agreed to expire the fixed term prematurely but didn't apply the proper rate as per contract. The bank broke contract. Very simple. Also in some contacts it doesn't mention tracker mortgage. It just says <.8% over ECB. If banks fully understood the contracts then we wouldn't be in this mess. Maybe customers who broke early knew that they should roll on to tracker rate and that's why the broke. Maybe they were the clever ones


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## Sarenco (23 Feb 2017)

joe351980 said:


> what if the customer new exactly what was in their contract I.e. on expiry of fixed term a tracker rate to apply.



If any bank failed to honour it's contractual obligations to a customer to apply a particular rate on the expiry of a fixed-term, then the customer is entitled to be put on that rate ASAp and to receive appropriate compensation.

No doubt about it.


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## mister32 (23 Feb 2017)

@Sarenco For years you have been telling people they don't qualify for restoration to tracker.

Against odds 11,500 customers have been restored.

And now you're finally saying they should be restored!


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## mister32 (23 Feb 2017)

The original contract stated 2 conditions: tracker and fixed.

End of fixed would revert to tracker


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## joe351980 (23 Feb 2017)

Mister I bet it even stated the penalty for breaking fixed term early


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## Sarenco (23 Feb 2017)

mister32 said:


> @Sarenco For years you have been telling people they don't qualify for restoration to tracker.



Huh?  

There were thousands of borrowers across practically all our lenders that were contractually entitled to default to or had an option to convert to a tracker on the expiry of a fixed-rate period.  I have never suggested otherwise and I actually assisted a number of such borrowers that were wrongfully denied their contractual rights.

However, the notion that every borrower that ever had a tracker should be entitled to revert to that tracker, regardless of what their contract actually says, is wrong-headed.  As I have said repeatedly - the actual contract wording is critical.


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## Sarenco (23 Feb 2017)

mister32 said:


> The original contract stated 2 conditions: tracker and fixed.



Right but what did the contract when you fixed say would happen on expiry of the fixed-term?  That's what matters.


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## mister32 (23 Feb 2017)

There was no contract to fix.

Simply a letter availing of the already defined option to fix.

That was what the original contract defined. 

That plus a cheque for €63


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## Sarenco (23 Feb 2017)

@mister32 

Ok, what did the letter say would happen on expiry of the fixed-term?  Or did the letter refer to separate T&Cs contained elsewhere?  Or perhaps it referred back to the T&Cs contained within the original documentation?

If the terms of the fix genuinely provided you would revert to a tracker or expiry of the fixed-term then that's what you are entitled to.  No question.


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## thedaddyman (24 Feb 2017)

I can only comment on my own personal situation where I have had a tracker since 2004. We took out a new mortgage in 07 on a new house and that was also a tracker. We did look at fixing around 08 at the time the crisis was starting to get some momentum but in the end, we decided not to, simply because it was blatently and clearly obvious that at the end of the period  we may not be allowed to return to a tracker rate and even if we were, it may not be at the same rate we were originally on (0.75% above ECB).

Our situation was perhaps slightly different from other people in that me and my better half at that time had over 40 years banking experience between us, both within banks and also outsourced providers, we knew how to read mortgage documentation and knew how banks behaved.

Nobody mis-sold me a fixed rate because we knew what we were dealing with. It is probable that some people were mis-sold fixed rate mortgages and to me it also seems the clause preventing people from returning to their original tracker rate was an unfair clause and it is has been deemed so by the courts.

However, when I read cases on here and in the papers I also have to say that for some people, (and I fully accept everyone is different so please don't jump down my throat here) got into financial difficulties not because of their loss of a tracker but because they were carrying far to much debt and frankly made a mess of their own finances. It's not always "someone else's fault"


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## pinkie123 (24 Feb 2017)

This was my experience of a tracker with BOI. Traded up in 2008(!), rates were on the rise, was offered a number of rates including tracker and ECB rates were actually rising so I decided to fix for 2 years so I would know what my repayments would be. I think there was 1 rate rise after I drewdown the mortgage and then the ECB rate started falling. I remember threads on here - there were people trying to break out of their fixed rates and I think it was PTSB that was allowing this with no penalty - well we all know what happened there. I rang BOI to break out of my fixed rate but I was facing a large penalty so I stayed on the fixed. After the 2 years was offered a number of rates including tracker - which I picked and sent the letter back. I wonder how many didn't bother replying to the letter as I think I would have defaulted to variable if I did not pick tracker. But I was offered tracker. Never got any correspondance/phone calls from bank to move from tracker.
I am not a bank supporter in any way - this is just my experience.


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## Lightening (24 Feb 2017)

Like Pinkie123 we were offered the tracker when we went to break the fixed rate and the break out was too high at the time. At the second attempt the bank said the tracker was no longer available. We have since discovered they were still giving out trackers during this time but denied us this rate.  It was called a "variable rate" mortgage. The bank should have in their contracts differentiated between the variable terms i.e. 
Tracker variable 
Standard Variable Rate 
Home loan rate Etc.

To say the contracts were ambiguous is an understatement!

but "The devil is in the detail"


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## cremeegg (24 Feb 2017)

But Lightening, you never had a tracker in the first place.



Lightening said:


> My tracker contract never mentioned the word tracker only "variable".


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## Lightening (24 Feb 2017)

Yes I did


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## Sarenco (24 Feb 2017)

@Lightening 

Could you tell us exactly what your contract said would happen at the end of the fixed-rate period?  If there were any capitalised terms used in the relevant clause, we would also need to see the definitions used in the contract.

It is certainly true that some contracts were ambiguous on this point but the vast majority were actually pretty clear.


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## Lightening (24 Feb 2017)

@Sarenco 
Quote
It is certainly true that some contracts were ambiguous on this point but the vast majority were actually pretty clear. Unquote

This is correct. 

It's with a legal firm so I will not be quoting my contract. As you have stated some were not clear.


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## Sarenco (24 Feb 2017)

I find it striking that some posters protest in very strong terms about how they have been wronged by their lender but then prevaricate when simply asked to tell us what their contract says.

Perhaps that feeds into cremeegg's point.


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## Freshstart (24 Feb 2017)

But Cremeegg for the most part the impacted customers are "the taxpayer"!


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## PGF2016 (24 Feb 2017)

thedaddyman said:


> However, when I read cases on here and in the papers I also have to say that for some people, (and I fully accept everyone is different so please don't jump down my throat here) got into financial difficulties not because of their loss of a tracker but because they were carrying far to much debt and frankly made a mess of their own finances. It's not always "someone else's fault"


The unpalatable truth. How do we as a nation prevent this from happening again? This should be part of a financial literacy course taught in school.


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## emeralds (24 Feb 2017)

What I also find incredible is the number of borrowers who don't have all the paperwork relating to their mortgages. 
 I looked at ours last night and we are on a 'Tracker Variable' at ECB + 0.9%.


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## cremeegg (24 Feb 2017)

From what I can gather on the numbers. 370,000 people took out tracker mortgages, 20,000 people lost them, 350,000 still have them.

What makes the 20,000 who lost their trackers different from the 350,000 who kept theirs.


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## peteb (24 Feb 2017)

cremeegg said:


> From what I can gather on the numbers. 370,000 people took out tracker mortgages, 20,000 people lost them, 350,000 still have them.
> 
> What makes the 20,000 who lost their trackers different from the 350,000 who kept theirs.



they probably didnt fix around 2006 when the the ECB rates were passing out the fixed rates.


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## Brendan Burgess (25 Feb 2017)

Just to summarise

In some cases, borrowers were clearly entitled to a return to tracker after the fixed rate ended and the lender clearly and incorrectly did not offer them. In these cases, the lenders have given them back or will be giving them back.

Examples:  AIB refusing trackers on the grounds that they did not do them anymore and ptsb claiming that people who broke their fixed term contracts early were not entitled to avail of the "You will be offered a tracker at the end of your fixed rate period."

But the fact that some people were clearly entitled to get their trackers back, does not mean that everyone who ever had a tracker should get theirs back. 

When people fixed their rates and the documentation was clear that they would not be getting their tracker back, they will not be getting their tracker back.  They can go to the FSO, the courts and the European Court if they want to. But they will not be getting their trackers back.

It's very important that people realise this.  It's clear to me that some posters on Askaboutmoney have very unrealistic expectations. 

I think that this  is the point Cremeegg is making and it's a helpful point, even if people might not like it.  Making the point does not make him or Sarenco "pro-bank".

I have seen the documentation in one of the 1,800 BoI Staff Tracker cases, and it was clear to me that the FSO was correct in not giving her back her tracker.  I find it odd that 1,800 people working in a bank were apparently tricked out of their valuable trackers by their employers.  I would have thought that there would have been a general discussion among staff whether or not it was a good thing to do and the pros and cons would have been discussed over the photocopier.

And before you all accuse me too of being pro-bank, it's absolutely clear to me that some people were denied their trackers incorrectly and I am glad that they have been returned.  Where the CB finds evidence that a bank deliberately tried to encourage customers off trackers, even if the documentation is clear that they would be losing their trackers, these customers should get their trackers back.

But where people took a bet on interest rates by fixing and where the documentation was clear that they would be giving up their tracker rate, then they really have no grounds for complaint.

Brendan


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## Bronte (25 Feb 2017)

Lightening said:


> @Sarenco
> Quote
> It is certainly true that some contracts were ambiguous on this point but the vast majority were actually pretty clear. Unquote
> 
> ...


What kind of an answer is this?

Before you waste any more money on legal fees type out your mortgage clause please.


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## Bronte (25 Feb 2017)

Lightening said:


> Like Pinkie123 we were offered the tracker when we went to break the fixed rate and the break out was too high at the time. At the second attempt the bank said the tracker was no longer available. We have since discovered they were still giving out trackers during this time but denied us this rate.  It was called a "variable rate" mortgage. The bank should have in their contracts differentiated between the variable terms i.e.
> Tracker variable
> Standard Variable Rate
> Home loan rate Etc.
> ...


Even if your bank was giving out trackers it doesn't mean you were entitled to one. Banks have different products which are not available to everybody.

How much was your fixed rate, what year, how much would the tracker have been, what was the break out penalty?


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## elacsaplau (25 Feb 2017)

Brendan Burgess said:


> When people fixed their rates and the documentation was clear that they would not be getting their tracker back, they will not be getting their tracker back.  They can go to the FSO, the courts and the European Court if they want to. But they will not be getting their trackers back.
> 
> and
> 
> Where the CB finds evidence that a bank deliberately tried to encourage customers off trackers, even if the documentation is clear that they would be losing their trackers, these customers should get their trackers back.



Brendan,

I find these two statements a little contradictory.

Also, at a general level

1. The case I am familiar with is not covered by your summary in that the documentation is simply is not clear and factors like custom & practice and verbal commitments are involved. Hence, the complexity of this issue.

2. In relation to "the CB finding that a bank deliberately tried to encourage customers off trackers" - how is this going to happen? How is the CB going to get access to all relevant documentation to make such a determination?


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## Linten (25 Feb 2017)

Brendan

Not for the first time, you seem to be suggesting that bank staff 'should have known better' in relation to moving off Tracker. I'm sure you don't mean that they should be treated any differently to any other Consumer in availing of the protections afforded by Consumer protection regulations. 
The Bank is hugely diverse, with employees across a wide spectrum including IT, head office roles, back office functions. Many or these staff would be as 'uneducated' as any other consumer in terms of mortgages/interest rates, etc., so to say they should have been able to avoid this situation, by discussing it around the photocopier is a bit simplistic.

I would be interested to see the contract that you mentioned which was turned down by FSO and which in your own opinion was clearcut. I know that my own case and many colleagues are not clearcut, insofar as there is considerable ambiguity in the MFA which was signed when staff switched from their Tracker in the first place. The key points are;
 - original mortgage draw down repayment mortgage, variable rate of 2.95%
 - special condition 4 specifies that interest rate will be no more than .95% above ECB REPO rate for life of loan.
 - 'tracker' rate is not mentioned anywhere in the offer letter
 -  MFA signed August 2006(after introduction of Consumer Protection Code), highlights roll to interest rate shall be the prevailing Home Loan Variable rate
 - "save as set on on this Form of Authorisation, all the terms and conditions applicable to the Loan remain unchanged."

There was no mention of a Tracker interest rate in the original offer letter and again no mention of it on the MFA, which is consistent and which should have resulted in special condition 4 (ECB repo rate) being applied. As there is no information available, I am assuming that BOI is defending non return of tracker on the basis that they meant standard variable rate ...to me there is ambiguity there, not the same as but similar to UB cases where Tracker has been restored to many consumers. I believe there is an arguable case but not sure if anybody in the circumstances outlined has taken it forward. If they have I would like to see the FSO response or legal outcome.


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## Brendan Burgess (25 Feb 2017)

Hi Elacsau 

They are not contradictory. I really doubt if the documentation is clear, that any of the organisations will give the borrower back their tracker. Having said  that, I think that if it can be shown that the bank deliberately tried to encourage people off trackers, they should get them back. They won't, but they should. 

My summary was not intended to include all cases. I was just highlighting the correctness of cremeegg's suggestion that not everyone deserves their tracker back and gave some examples. There are some cohorts, but there are many individual cases. 

I think that the Central Bank will need a whistleblower and I suspect that they have at least one. 

Brendan


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## Brendan Burgess (25 Feb 2017)

Hi Linten,

I am sure that there are many cases within the 1,800. Some might deserve their trackers back. 

They are entitled to the same protections as other consumers. But I still find it very difficult to understand how an employer managed to "con" 1,800 staff, some of which were fairly senior. 

Brendan


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## Hogmeister55 (25 Feb 2017)

Hi Brendan,

In October 2008 the bank put up a message on the internal website that all staff accounts on the fixed rate would roll to the tracker as per original loan agreement.

At that point regardless of any contracts, wording, misunderstandings, or any other factors prior to that the bank and the staff both believed the same thing. The mortgages would roll to trackers. I believe the IT system was programmed for this to happen too.

I think it is perfectly fair that the staff challenge why this didn't happen and instead we were told in January 2009 that they changed their view AFTER that October date.

I am not a financial or legal expert and do not sell products to customers.

On the question of whether or not we were conned. Below is honestly how I ended up in this position.

When the bank put out a staff offer In 2006 I assumed they were offering it in my best interests. I had a tracker and wouldn't have moved off it without that offer. I hadn't considered it. They made it very easy by having a downloadable form I could print out in work. You may not consider that advice but I did and followed it.

I may never get the tracker back and that's something I will have to live with. I am the idiot who brought a form home to my wife to sign and told her how the bank was looking after us as I am staff.


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## Brendan Burgess (25 Feb 2017)

Hi Hog

It's a while since I reviewed the case. 

At  roughly what date did you make the decision to move from the tracker rate to the fixed rate? 

Brendan


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## Linten (25 Feb 2017)

Brendan

I do not subscribe to the idea of getting my Tracker back because I was 'conned' or 'tricked' out of it. The overall purpose of the Tracker review by CBOI is to assess Banks compliance with both contractual and regulatory requirements in how they dealt with the withdrawal of Tracker mortgages from the market.
 Nobody tricked me out of anything,(I am not saying that nobody was tricked though as many other people were subjected to unfair means of removing Trackers from them), however I do believe that I have a case for return of my Tracker based on my interpretation of the documentation which I signed and which I believe was not clear in terms of what my mortgage would roll to and which I have outlined in previous post. This would represent a failure by the Bank to meet their obligations under the Consumer Protection Code 2006 - Requirement 12 of Chapter 2 of the Code states "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".
If the Review finds that I was entitled to my Tracker and restores it on this basis I will be satisfied that justice has been done. If they don't and I get the opportunity to appeal and still lose, then I will take my medicine.


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## Onceagain (25 Feb 2017)

It was a no brainer, the website stated we would roll onto tracker after the expiry of the fixed rate. We had nothing to lose, 1800 of us made that decision. And yes as staff we always discussed rates. When they denied us return of the tracker, as staff we shouted to managers, the union, the IBOA and we are still shouting.  It was the bank that changed the goal posts. We are not trying to get something that we are not entilted too.  As customers first and as staff second we were wronged, firstly by BOI, and secondly by our employer.  We will continue to fight.


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## MAX01 (25 Feb 2017)

I have a print-out from the bank which stated the following information:
Current Product - Staff 2 year fixed rate
Current Rate - 3.85
Roll to Product - Staff Tracker ECB Repo + 0.75%
Product Rollover Date - 05/01/2009
This information still showed on my loans AFTER my Tracker was pulled.
The bank's excuse was that it took them some time to change the details on the system to reflect the termination of the Tracker option!


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## Tedtalk (26 Feb 2017)

.


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## Dan Murray (26 Feb 2017)

Understandably, there is a lot of emotion in this debate. For those directly impacted, "debate" is too slight a word.

In the spirit of understanding the issues better, I'd like to comment on something Brendan said - which was essentially that if the contract clearly stated that borrowers would not get their tracker back at the expiry of the fixed term, then this means that.......borrowers would not be getting their tracker back.

I understand why Brendan might take this position. It is reasonable to assume that the written contract is the basis of any agreement. However, I do not agree with the absolute nature of Brendan's position. In my long experience in business, one thing that I have learned is that things in general and the law in particular are not always black and white. In simply terms, taking absolute positions [as in.....borrowers will not be getting their trackers back........based on only part (i.e. the written contract) of the overall circumstances.....is, to quote Sir Humphrey, very brave.]

One thing that I have noticed in threads to do with the tracker issue is the relative absence of contributions from the legal eagles within the AAM community. I would like to set out a scenario (which is very similar to a real life case of which I am aware) and ask our legal friends to comment on whether Brendan's certainty in relation to the absolute determining nature of the written contract is justified in these circumstances.

1. Individual bought 2 investment properties on a tracker basis with BOI in 2003.
2. Circa 2 years later, he fixed the mortgage on property 1.
3. A further 15 months later, he fixed the mortgage on property 2
4. At the expiry of the fixed term on property 1, the tracker is restored, in line with the written contract.
5. At the expiry of the fixed term on property 2, the tracker is DENIED, in line with the written contract.
6. Both trackers were with BOI and the same individual was the relevant bank contact in relation to the initial property purchases and also at the time of initiating the fixed periods.
7. This bank official (now ex-BOI) is prepared to swear an affidavit/testify that he:
(a) was unaware that the tracker would be lost upon "fixing" in relation to loan 2
(b) assured the client that he would have the right to return to his tracker at the expiry of the fixed term in relation to property 2
(c) did not provide any warnings in this regard in compliance with the Consumer Protection Code
(d) would not have been able to provide any warnings in relation to the CPC because he was unaware that there was anything about which to warn clients!

I think that's the general gist of the case - looking forward to contributions from all but especially our esteemed legal friends!!


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## Bronte (26 Feb 2017)

Who in the bank made the decision to remove the trackers?

Who has that power?

There must have been a meeting about this. Were there minutes of the meeting?

Was there correspondence, emails etc between management and their legal team about the legalities of removing the trackers?

Posters on here are bank staff, work it out. How did it happen. Then you will prove it was a deliberate decision.


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## Brendan Burgess (26 Feb 2017)

Hog, Linten and Max01

Could you please tell me the dates on which you fixed your mortgage rates with Bank of Ireland? 

Thanks

Brendan


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## Dan Murray (26 Feb 2017)

Hi Bronte,

You make very fair points. But....

My sense, however, is the apparatus of state should not be rewarded for its abject failure to date in resolving this debacle and that the state (in whatever the appropriate manner is) should finally take responsibility for resolving this mess & performing such an investigation.

Very simply, instead of having a bottom up approach (where individuals become charged with taking various initiatives described in this and other threads) - the STATE should take this issue by the scruff of the neck and sort it out and whatever body is charged with this exercise should be given all necessary powers. This is the TOP DOWN approach.

To date - we have little isolated man taking on the mighty banks in an uncoordinated and frankly ineffective manner. Why not rebalance the equation - why not get the State to sort it out?


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## Brendan Burgess (26 Feb 2017)

Dan Murray said:


> the STATE should take this issue by the scruff of the neck and sort it out and whatever body is charged with this exercise should be given all necessary powers. This is the TOP DOWN approach.



Hi Dan

Isn't the state already doing that through the Central Bank?

Brendan


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## Dan Murray (26 Feb 2017)

Hi Brendan,

Firstly and importantly, I believe AAM is of great assistance to those impacted by this issue even (or especially!) when folk have different views! 

In my view, the CB's performance is an absolute disgrace. It is clear that the CB knew about this issue c. 7 or 8 years ago. They have demonstrated absolutely no sense of urgency in bringing closure to this debacle. The fact that we are still debating this issue now is because the CB has failed spectacularly to manage this situation properly to date. For the avoidance of doubt, I do not have confidence in them! - my impression is that certain members of the Finance Committee are similarly unimpressed! [The body language was informative when Paddy Kissane was defending the CB!!]

Anyway, this particular issue is debated further in this thread....
http://www.askaboutmoney.com/threads/tracker-public-interest-legal-action.202663/


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## MAX01 (26 Feb 2017)

Brendan, I fixed on 28 December 2006


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## Brendan Burgess (26 Feb 2017)

Thanks Max

That is what I thought.  These 1,800 people fixed in 2006.

Tracker mortgages were widely available at the time.  Neither Bank of Ireland nor the staff who fixed understood the value of trackers at that time. If you had understood, you would not have fixed.  If the Bank had understood, it would not have been offering trackers.

So BoI was not deliberately conning people out of trackers. If I recall correctly, you were being caught by bizarre BIK rules and fixed to avoid them? 



Hogmeister55 said:


> In October 2008 the bank put up a message on the internal website that all staff accounts on the fixed rate would roll to the tracker as per original loan agreement.



This was two years after people made the decision to fix.  BoI made an error in putting up that message. It had no consequences for the borrowers.  No one gave up their tracker based on that error.

Say a tracker mortgage holder today is concerned about the rise in rates and is thinking of fixing.
Let's say that their bank writes to them and tells them, in error, that they get their tracker back after fixing.
The borrower then fixes based on that error.
Then the bank refuses them the tracker back at the end of the fixed rate.
The borrower would win their case immediately with the FSO. The bank would not even contest it.
The borrower made a decision based on the bank's error.

In the 1,800 cases, no borrower lost as a result of the bank's error in 2008.  Had the bank written to you when you fixed, and told you that you would get the tracker back, then you would get your tracker back.

I am basing my analysis on the one FSO decision I have seen.  It may be that the other 1,799 cases are different. But this is what the FSO said.


*“It is therefore evident that this MFA clearly and unambiguously ended the Bank’s original contractual commitment to provide the complainant with a tracker rate”*

*“It is indisputable that paragraph 3 of the MFA clearly superseded the tracker special condition 11.4”
*
The FSO has reached the opposite conclusion in many other cases. That the MFA was vague and therefore the borrower should get their tracker back.  It seems that BoI accepted this in these cases and put over 2,000 people back on trackers: BoI to review the tracker issue

So, just to restate Cremeegg's original point. Many borrowers were unfairly denied their trackers. But many others have only themselves to blame.

Brendan


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## Hogmeister55 (26 Feb 2017)

Hi Brendan,

I would counter argue that the MFA was not clear, unambiguous and did not explain the possible consequences of giving up a tracker. That is for central bank review to decide. 

The other point I made is that the roll-to rate on all the staff mortgages in October 2008 was to staff tracker ECB +0.75 not variable or fixed.  This was set up on the IT systems. The internal website was reporting that fact to staff. In fact it specifically stated that other options would be given in January 2009. If you did not chose something else then the default option was tracker.

Whatever we signed up previously to that the bank intention in late 2008 was that all staff would move to trackers. The internal website report was not a mistake. The bank did not claim it was a mistake the letters we received in January 2009 stated that they had reviewed the decision since then.

It's very easy to say we were consciously giving up trackers in 2006 or 2007 however the bank decided after October 2008 to switch the roll-to rate to variable. 

Even though it was all so absolutely clear and unambiguous the bank made the same error as we did. They assumed we were rolling to tracker. Someone had to go in and change the system after October 2008 to fix that.


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## Brendan Burgess (26 Feb 2017)

I see that this has been discussed at length in the other thread 

http://www.askaboutmoney.com/threads/bank-of-ireland-staff-lost-tracker.196774/page-3#post-1455123

At the end of the day, it doesn't matter what I think.  The FSO or the High Court will decide. 

Brendan


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## mister32 (26 Feb 2017)

Brendan Burgess said:


> Neither Bank of Ireland nor the staff who fixed understood the value of trackers at that time. If you had understood, you would not have fixed. If the Bank had understood, it would not have been offering trackers





There was a clear understanding on both sides of what a tracker was: indefinitely track ecb rate.

But when the ecb rates dropped the banks then *tried* to change that understanding.

By the way Brendan, I know nothing about the BOI staff tracker situation but I find it incredible that a founder of a consumer finance website is describing a bank publication on a website as an error and then excusing them for it!!

Amazing!


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## Brendan Burgess (26 Feb 2017)

mister32 said:


> I know nothing about the BOI staff tracker situation



Despite that, you feel qualified to comment on it.


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## Linten (26 Feb 2017)

Brendan

I switched from Tracker to staff variable in August 2006 and subsequently switched to fixed rate in early Jan 2007, when the variable rate which was linked to Revenue BIK rate was  no longer available.

*That is what I thought. These 1,800 people fixed in 2006.

Tracker mortgages were widely available at the time. Neither Bank of Ireland nor the staff who fixed understood the value of trackers at that time. If you had understood, you would not have fixed. If the Bank had understood, it would not have been offering trackers.

So BoI was not deliberately conning people out of trackers. If I recall correctly, you were being caught by bizarre BIK rules and fixed to avoid them?
*
However I have to take issue with your above post....surely you remember the context in 2006/07 - ECB rate was increasing almost monthly. Many consumers were seeking to mitigate interest rate risk by fixing their mortgages and looking for attractive options that might help them weather the storm, so switching from Tracker to Fixed at that time was a sensible decision.What is at issue is the Bank's decisions not to offer return to Tracker rate on expiry of fixed term, given that in most cases they had already included ECB tracker feature for life of loan in original Mortgage Offer letter. Given that the Banks at that time(as you point out yourself)did not understand the value of the Tracker option, it would appear more like incompetence than anything else, that their MFAs did not specify return to Tracker on expiry of fixed term.

I would really like to see the wording of the MFA that you quote as *clearly and unambiguously ended the Bank’s original contractual commitment to provide the complainant with a tracker rate”* to see if it is the same as my own which I referred to earlier....if you were able to reproduce the wording it would be greatly enlightening.

Separately I have reviewed the link which you posted in relation to BOI restoring 2096 trackers in 2010 and certainly the plot thickens. Key poster 'Booter' was making the exact same argument for restoring his Tracker with FSO as regards the interpretation of 'variable' rate, as I am in respect of my MFA. The only difference is that in my case the MFA quoted 'Home Loan variable rate' and in his case no roll to rate was quoted, however BOI  cite a seperate General condition of the original agreement, which provides that upon expiry of any future fixed rate, the rate on offer "would be a variable rate"
....anyhow read the full post and you will see that 'Booter' was restored to Tracker as part of the general return of 2096 trackers by BOI in 2011
*Why was my Tracker not returned as part of that major review??...that is the question for Bank of Ireland and Central Bank of Ireland which oversaw that BOI investigation.*


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## Sarenco (26 Feb 2017)

Hi Linten

Booter certainly reported that Bank of Ireland restored his tracker.  

However, it is clear from the thread that this was not on foot of a FSO adjudication and it is unclear whether it had any connection at all with the arguments he was making to the FSO.  

In other words, it's not much of a precedent.


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## Brendan Burgess (26 Feb 2017)

Linten said:


> given that in most cases they had already included ECB tracker feature for life of loan in original Mortgage Offer letter. Given that the Banks at that time(as you point out yourself)did not understand the value of the Tracker option, it would appear more like incompetence than anything else, that their MFAs did not specify return to Tracker on expiry of fixed term.



Hi Linten

This is exactly the point that Cremeegg is trying to make. You had a tracker rate and you fixed as you were worried that rates were going to rise. 

The MFA changed the terms of the contract - "clearly and unambiguously" according to the FSO.  I have looked for the documentation, and don't seem to have it anymore.  Maybe you could reproduce yours? 

You seem to acknowledge that the MFA did not specify a return to tracker, so I am not sure why you think you should get the tracker back? 



Linten said:


> The only difference is that in my case the MFA quoted 'Home Loan variable rate'



I suppose that the FSO or the High Court would have to decide if it was clear that the "Home Loan variable rate" is not a tracker.

If I were employed as a bus driver, I might argue that this terminology was not clear to me at the time.  

If I were employed by a bank, I would find it hard to say that I thought a Home Loan Variable Rate was a tracker.  

But, it doesn't matter what you or I or the Bank of Ireland thinks, if the FSO or High Court decides that it was not clear to 1,800 bankers, then you will get your trackers back. If the FSO or the High Court thinks that it was clear, then you won't. 

Brendan


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## cremeegg (8 Mar 2017)

From another recent thread,

_"Hi, it seems I'm pretty late to the tracker party"_
_
http://www.askaboutmoney.com/threads/could-i-be-entitled-to-tracker-ulster-bank.202882/_


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