# BOI Tracker Rate - Advise on appealing to High Court



## nonie (10 Sep 2014)

Hi all,

We have just received a ruling in our favour from the Ombudsman in relation to BOI not reinstating a Tracker rate on our old home loan. The Ombudsman states that the "Bank did act wrongfully, and in breach of duty, when it failed to offer the Complainants the option of switching mortgage acc XXXX back to the original tracker rate of interest on expiry of the fixed term in XXXX.... The complaint has been substantiated".

The home loan in question is now closed and a new home loan account opened in 2012 which is costing us substantially more in interest payments. 

The Ombudsman has ruled that the Bank need only repay the difference in interest  until the account closed and a minimal "compensation" in lieu of our tracker rate of a couple of thousand euro.......

We are now taking advise on how to progress the case to the High Court.
Does anyone have any advise or can recommend any legal counsel to take the case forward? 

The ruling is in our favour but the compensation amount is completely inequitable in comparison to the interest payable on our new rate with BOI.

Thanks in advance.


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## Brendan Burgess (10 Sep 2014)

nonie said:


> The home loan in question is now closed and a new home loan account opened in 2012 which is costing us substantially more in interest payments.



Hi nonie

In what circumstances did you close the home loan account and open a new one?


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## nonie (11 Sep 2014)

Hi Brendan.
We closed the previous home loan after being told repeatedly by BOI that we were not entitled to a tracker. The ombudsman found that we were entitled to the tracker.... but they only concluded this after we closed our old home loan account. We were approved a new home loan as we decided to move as we thought we had nothing to lose because we were repeatedly told by the bank we had no tracker.  They eagerly closed the account (our tracker) and opened a brand new home loan. The old account was also in negative equity. .. which we were advised to clear from our savings. 
In summary the Bank closed our tracker without admitting it was a tracker. Advised us to clear the negative equity ourselves and Opened a new home loan on current high rates.
The are getting away with just reimbursing us the overpaid interest,  breakage fee and a token compensation. ... In fact we have lost out on savings of several hundred thousand. We obviously would never have moved hone if we thought we had a valuable tracker rate.
Any chance I could talk to you about this?


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## Gerry Canning (11 Sep 2014)

Nonie; 

Suggest take the Ombudsmans judgment to a trusted solicitor; if Ombudsman decreed you were entitled to tracker yet did not tell boi to re-instate it there may well be some legal catch to granting you a (new) tracker.

Sounds like you have been done by Boi and Ombudsmans reparation seems odd ? 

Take trusted solicitors advice and if you have to drop case then sadly so be it.


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## nonie (11 Sep 2014)

I will thanks. And yes it is criminal what BOI has been allowed to get away with.
The ombudsman appeared to be saying that because we had savings ( saved over the year instead of buying fancy cars) and were able to get another mortgage that we don't deserve the tracker back. If we were in arrears I'm sure they would have told them to reinstate it.
Anyone any suggestions for good financial solicitor?


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## peteb (11 Sep 2014)

You wouldn't be entitled to the tracker back for the new loan.  The tracker mortgage product was never portable so once you move house - even if you still were on the tracker - you would have lost it by redeeming the mortgage.


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## Steven Barrett (11 Sep 2014)

You'd want to be damn sure of your case before going to the High Court. Lose that and never mind your own barrister fees, you'll be paying the banks too. 

Steven
www.bluewaterfp.ie


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## Brendan Burgess (11 Sep 2014)

nonie said:


> We were approved a new home loan as we decided to move as we thought we had nothing to lose because we were repeatedly told by the bank we had no tracker.



Sorry nonie, it seems to me that you have virtually no case. 

If you have switched your loan from Bank of Ireland to AIB, then I think you would have a case.  

But up until relatively recently, when people traded up, they lost their tracker. 

Sure you have been treated badly in that they denied you were entitled to a tracker. 

For you to win your case, you would have to prove that you would not have moved home if you had been on a tracker. 

I would strongly advise against appealing to the High Court.   I would even advise against going to a solicitor.  There is a significant risk that the solicitor might share your outrage and start a legal process which would cost you a lot of money.

*Key Post* Appealing an Ombudsman's decision to the High Court

[FONT=&quot]To succeed  on this appeal the Plaintiff  must   establish  as a matter  of probability  that, taking the adjudicative   process  as a whole,  the decision reached  was vitiated  by a serious  and significant  error or a series of such errors.[/FONT]

I think that only one or two consumers have managed to win a High Court appeal.  

It doesn't seem to me, from what you have outlined, to be a serious and significant error. 

If, by some miracle, you managed to convince the judge to overturn the decision, all the judge can do is to refer it back to the Ombudsman to rehear the case.




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## nonie (11 Sep 2014)

The ombudsman states that they are "satisfied that the Bank did act wrongfully,  and in breach of futy".... and that the complaint is substantiated". They awarded compensation but it is only a fraction of what we have lost out on in terms of interest saving. 
How can they uphold the complaint but not rectify the financial loss?


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## T McGibney (11 Sep 2014)

Brendan Burgess said:


> I would even advise against going to a solicitor.  There is a significant risk that the solicitor might share your outrage and start a legal process which would cost you a lot of money.



Brendan,

How can a solicitor start a legal process, and create a liability for their client, without the client's specific authorisation to do so?


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## Brendan Burgess (11 Sep 2014)

nonie said:


> How can they uphold the complaint but not rectify the financial loss?



What loss did  you suffer as a result of their wrongful act? 

When you moved home, you would have lost your tracker anyway.


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## Brendan Burgess (11 Sep 2014)

T McGibney said:


> Brendan,
> 
> How can a solicitor start a legal process, and create a liability for their client, without the client's specific authorisation to do so?




Hi Tommy 

They can't start it without the client's authorisation. 

That is not the point though.  Many solicitors have very poor knowledge of financial issues. Many solicitors have very poor knowledge of the Ombudsman. Many solicitors will acknowledge this lack of expertise and refer them on. But some solicitors will think that they can handle it themselves and encourage the client down a dangerous and expensive path.

A good solicitor, on the other hand, will point out early on that the client has little chance of success.


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## nonie (11 Sep 2014)

We suffered a huge loss. I.e the savings in interest payable over the term of the loan V's the new loan they gave us. The point here is that if they told us we had a tracker loan while it was active (we asked repeatedly) rather than after they had closed it (convenient ly) we would never have moved home.  We had no necessity and moved within the locale to another 3bed. In fact to a property needing a complete overhaul V's our old home.


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## peno (11 Sep 2014)

nonie said:


> We suffered a huge loss. I.e the savings in interest payable over the term of the loan V's the new loan they gave us. The point here is that if they told us we had a tracker loan while it was active (we asked repeatedly) rather than after they had closed it (convenient ly) we would never have moved home.  We had no necessity and moved within the locale to another 3bed. In fact to a property needing a complete overhaul V's our old home.



It's easy to say this.

The obvious counter argument in court will be can you prove you would never have moved?

Moving house is a huge step for anyone and yet you have more or less said it was an inconvenience to move. So why then did you move. 
Obviously if you were on a tracker it would have come into your thinking to stay put but you can't prove anything. You moving was not a direct consequence of not having a tracker. There would be a lot of other things to consider.

Very easy for the bank to defend.


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## Brendan Burgess (11 Sep 2014)

Agree with peno. 

And agree with the Ombudsman's decision.  

It's very tough on you that the Bank repeatedly refused that you were entitled to a tracker. But you should have made your complaint and got your tracker back before you moved. 

Brendan


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## nonie (11 Sep 2014)

Sorry but no one would move home and risk losing their tracker surely? There is no way we would have if we had ours in place. 
We did ask And complain about the rate while the account was open.... just it took the Bank years to admit it and that happened after the account closed. 
The Bank is obviously allowed to delay telling the truth until it is too late so as to benefit their customers. 

Thanks for all heads up.


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## Dermot (11 Sep 2014)

Try a FOI request on your file and see will it reveal anything.  I appreciate that in recent times there is a lot of stuff not kept on file because of FOI but you never know.  Have you a written record of any of the correspondence yourself.  You will need to word your request well in order to cover everything.


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## Steven Barrett (11 Sep 2014)

nonie said:


> *Sorry but no one would move home and risk losing their tracker surely?* There is no way we would have if we had ours in place.
> We did ask And complain about the rate while the account was open.... just it took the Bank years to admit it and that happened after the account closed.
> The Bank is obviously allowed to delay telling the truth until it is too late so as to benefit their customers.
> 
> Thanks for all heads up.



Sure they would, if they wanted to move to a nicer house. The world doesn't revolve around tracker mortgages. 

You were hard done by by the bank but your mistake was moving house when you thought you lost the tracker and thereby ending that contract and starting a new one. If you continued with the old contract, you would have been compensated up to the date of judgement. 

Will you be able to prove in the HC that the only reason you moved home was because you lost your tracker? 

Unless you have written correspondence to the bank stating that, you will lose a HC case and owe hundreds of thousands in legal fees. Bank of Ireland can afford to fight you in court, can you risk your future on a very thin case? 

The bank were appalling, you won but the compensation made it feel like a defeat. Lick your wounds and move on. To fight it will probably ruin you. 

Steven


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## Brendan Burgess (11 Sep 2014)

SBarrett said:


> Bank of Ireland can afford to fight you in court, can you risk your future on a very thin case?



As he will be appealing the Ombudsman's decision, his case will be against the Ombudsman and not Bank of Ireland.  And the Ombudsman does seek costs and does pursue them.


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## Steven Barrett (12 Sep 2014)

Brendan Burgess said:


> As he will be appealing the Ombudsman's decision, his case will be against the Ombudsman and not Bank of Ireland.  And the Ombudsman does seek costs and does pursue them.



Thanks for clarifying that.


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## Gerry Canning (12 Sep 2014)

Maybe I read it wrong but?

Was Ombudsmans case that BOI should not have cancelled Tracker on 1st loan. In that case consumer won and Ombudsman found for him..
Is the fact he did not get tracker on new loan not a separate issue , that can be pursued on the strength of Ombudsmans decision to find for customer on 1st case.


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## Brendan Burgess (12 Sep 2014)

Hi Gerry

Let's say that  Bank of Ireland offered nonie a tracker mortgage when they should have.

So he is sitting there happily with his cheap tracker. 

Then he chooses to sell his house to buy a new house.  He would have lost his tracker then anyway.  This is not in dispute. 

Nonie's only argument is "If Bank of Ireland had given me the tracker I would not have moved and so I would still be on the tracker". 

That might well be the case, but it would be impossible to prove. 

The Ombudsman ruled against him. Even if you disagree with the Ombudsman, you can only disagree with him, on balance. The High Court might form a different view to the Ombudsman, but that would not matter. A difference of opinion does not count as a "serious and significant error".


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## nonie (12 Sep 2014)

Thanks for all comments. 
Ombudsman did rule in our favour that BOI should have given us back our tracker. 
If the mortgage advisor was called to give testimony then they could confirm we were ranting(!) About how they were refusing to give us the tracker back.. We took their confirmation thst we were not entitled as the truth. The mortgage advisor is aware that this was the key determinant in our decision to move.  It was only the following year that the Bank admitted their "error" and failure to tell us it was a tracker....


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## Brendan Burgess (12 Sep 2014)

Hi nonie

Why did you move houses?  

Was there something wrong with the first house? Was there something right or better about the second house? 

Brendan


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## nonie (12 Sep 2014)

We had no tracker and like for like the new loan was no more expensive based on this lack of tracker.  We used savings as well and used some of these to clear the negative equity on the existing house.  We had no necessity to move. This seems to be a difficult concept for people?


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## nonie (12 Sep 2014)

P's we clear ed the negative equity on BOIS advise!


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## nonie (12 Sep 2014)

Pps the whole mortgage process was initiated when a BOI relationship manager chap wrote and contact ed us cold calling. ...


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## Brendan Burgess (12 Sep 2014)

nonie said:


> We had no necessity to move. This seems to be a difficult concept for people?



It's certainly very difficult for me to understand.  I suspect that the Ombudsman didn't understand it either.

You had a SVR mortgage and you moved and took out another SVR mortgage. 

Why did you move?  For the moment, forget the fact that you would not have moved had you a tracker. 

Brendan


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## peno (12 Sep 2014)

A lot of people don't have a necessity to move but they still move - is that a difficult concept?

Are you saying you spent stamp duty, solicitors fees, movers etc etc because you lost a tracker?
All the loss of tracker did was make your decision easier and less complicated. 

It's irrelevant you paid paid the negative equity - most people who move have to do that


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## nonie (12 Sep 2014)

This is actually really helpful.  I am saying we had no necessity to move and I now realise that that appears to be a foreign concept to many... including the ombudsman. 
Thanks.


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## Brendan Burgess (13 Sep 2014)

nonie said:


> I am saying we had no necessity to move and I now realise that that appears to be a foreign concept to many... including the ombudsman.



Moving house is a very expensive and stressful process. 

One does not need to have a "necessity" to move. 

But that is different from having a reason to move.  One needs a good reason to incur the expense and stress of moving. 

What was your reason for moving? 

Brendan


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## darag (13 Sep 2014)

Nonie, I feel your anger over your mistreatment by the bank is completely clouding your judgement.  Unfortunately angry people often pursue actions which are not in their best interest.

Ask yourself why not a single person here thinks it's a good idea that you take your case to the High Court?

Bottom line is that you want to be compensated for something hypothetical - for the situation that you would have kept the mortgage to term.  And not only is the situation hypothetical, it's extremely unusual; I imagine only 20% or so of mortgages are held for the entire period.  You have a miniscule chance of winning the compensation you feel you deserve but you are guaranteed to incur 10s or 100s of thousands of costs.

I cannot sue a mugger because I was on the way to the bookies to back a horse that subsequently win.  I can get compensated for the money they took from me - but not for the potential winnings.  Yes they were guilty and I was completely innocent but even if I show the judge the back page of the Herald with my biro mark around Lucky Jim in the 3:45 at Kempton - it's not going to help.


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## Brendan Burgess (13 Sep 2014)

darag said:


> I cannot sue a mugger because I was on the way to the bookies to back a horse that subsequently win.  I can get compensated for the money they took from me - but not for the potential winnings.  Yes they were guilty and I was completely innocent but even if I show the judge the back page of the Herald with my biro mark around Lucky Jim in the 3:45 at Kempton - it's not going to help.



darag

That sums it up brilliantly. I will plagiarise that analogy in similar cases in the future. 

Brendan


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## nonie (13 Sep 2014)

All very interesting.  Thanks. 

However I completely disagree about the 20pc of people holding their mortgages etc. 
I would hazard only a tiny percent of tracker mortgage holders have moved and lost their rate over the last number of years. They were so valuable no one was willing to move and surrender them.  This added to the stagnant market.   It is for this very reason that banks have now launched tracker mover mortgages. 

Banks have been caught red handed using unscrupulous tactics to get customers off trackers. 

In summary we were had and they got away with it.


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## Bronte (15 Sep 2014)

nonie said:


> Sorry but no one would move home and risk losing their tracker surely?


 

I''m sorry but this is complete nonsense. It's often stated on here and in the media that trackers are very valuable, and yes they are, but living in a house that is not suitable is not worth the cheap price of a tracker, living in a house in the wrong location because of a cheap tracker is not worth the cheap price of a tracker. 

You have consistently failed to anwser one basic question.

Why did you move house, forget the bank, forget everything else, why did you move?

I also have a second question.

How much would you have saved if you had kept your tracker. You mentioned several hundred thousand in post 3?

When you come back with the proper answer to those two questions you may get different advice, but it would want to be some story !

I do however have sympathy for you, for a) dealing with another disgracful bank and b) going to the bureaucratic ombudsman. Statistically you did well to win with him.


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## mro (15 Sep 2014)

I moved house and lost a tracker...we had to our old house was totally unsuitable for 2 small kids

I hated doing it but i did and a lot of people in our situation did the same. I feel for you Nonie but i'm just telling you people did move and choose to lose trackers


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## Brendan Burgess (15 Sep 2014)

I think that this story shows how tough the Ombudsman's job is. 

The clear majority of us think that he made the right decision in this case. 

But nonie is totally unhappy, even though he won his case. 

Bank of Ireland has a loss marked against them, although it's only a minor loss. 

Brendan


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## giggles (21 Dec 2014)

Can I ask what the outcome of high court appeal was? Did you appeal? i am in a similar position but with Ulster Bank - mortgage was on a tracker, fixed, was promised it would return to tracker upon completion of the fixed. Documents were ambiguous. Needless to say, they didn't. I argued with them by phone for months, eventually moving the mortgage to AIB 10 months later as the property was heading to negative equity and their rate was better. Ulster Bank refused to engage at any stage in that 10 months. 2.5 years with the ombudsman then - the bank lied, pervaricated, obfuscated and tried every dirty trick possible. The ombudsman ruled that the bank had erred but  said as the account was closed they could not reinstate the tracker nor did they see fit to pay the full amount of the compensation in the difference.


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## nonie (16 Feb 2015)

Hi all,
Didn't log on or post recently as really feeling quite mentally affected by the whole situation.
To clarify we moved from a 3 bed house to another 3 bed house around the corner. We bought our old home in 2006 and completely renovated it ourselves from own pocket. We were on Bank of Irelands "Premier Banking" corresponce list and were offered a new mortgage in 2012. We didn't realise we were in negative equity at first... but soon realised once we started looking that we were going to lose a lot of money - we lost 50% on the sale of our home in the end. We bought the new house as a "do-er upper" and we thought we might recoup some of the money we had lost.... We thought it might be the only way out for us in the long term after losing €450k on the value of the house. We were repeatedly told we had no tracker on the existing mortgage so we were not going to lose anything by taking out a new mortgage - Bank of Ireland lied. Yes there was a negative equity trade up mortgage available but they insisted we pay off the negative equity on our house instead as it was "cleaner" that way. For anyone who says Trackers are not valuable or it wouldn't be a reason not to move here are the sums; €480k on 4.69% over 26yrs = €352k cost of credit. €480k on 1.05% tracker over 26yrs = €69k cost of credit. That's a whooping €283k in the difference. So again we had no necessity to move from our 3 bed house to around the corner. Bank of Ireland swindled us big time by miss-selling us a new mortgage, removing our Tracker and signing us up to a new mortgage with new whooping rates. To reiterate Ombusbdans found in our favour but couldn't force BoI to reinstate our Tracker as we had signed new contract.... so very interesting what you say Fin Crusader... our problem is we now have zero funds left to bring this to the High Court (2 working parents & 2 small kids in a house that needs vast work... had new baby (with medical complications) year after moving in to a barely habitable house).... the Tracker would have made life bearable.
Thanks all.


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## Brendan Burgess (16 Feb 2015)

nonie said:


> We bought the new house as a "do-er upper" and we thought we might recoup some of the money we had lost.... We thought it might be the only way out for us in the long term after losing €450k on the value of the house.



At last, you have explained why you moved.  Although, I have to say it seems to me like a fairly strange reason for moving.  



nonie said:


> So again we had no necessity to move from our 3 bed house to around the corner. Bank of Ireland swindled us big time by miss-selling us a new mortgage,



Bank of Ireland did not mis-sell you a new mortgage.  You chose to move, for your own reasons. You were on an SVR and you stayed on an SVR. 

Had you been on a tracker, you probably would not have moved.  But your reasons for moving are very strange, so you might well have moved even if you had a tracker. 




nonie said:


> For anyone who says Trackers are not valuable



No one has ever said that they are not valuable 



nonie said:


> or it wouldn't be a reason not to move



No one has said that either. What they have said is that some people voluntarily give up their trackers to move to a more suitable home.

Your case is very odd in that you moved for no good reason.


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## Bronte (16 Feb 2015)

nonie said:


> We bought our old home in 2006 and completely renovated it ourselves from own pocket. We were on Bank of Irelands "Premier Banking" corresponce list and were offered a new mortgage in 2012. We didn't realise we were in negative equity at first... but soon realised once we started looking that we were going to lose a lot of money - we lost 50% on the sale of our home in the end. We bought the new house as a "do-er upper" and we thought we might recoup some of the money we had lost.... We thought it might be the only way out for us in the long term after losing €450k on the value of the house. We were repeatedly told we had no tracker on the existing mortgage so we were not going to lose anything by taking out a new mortgage - Bank of Ireland lied. Yes there was a negative equity trade up mortgage available but they insisted we pay off the negative equity on our house instead as it was "cleaner" that way. For anyone who says Trackers are not valuable or it wouldn't be a reason not to move here are the sums; €480k on 4.69% over 26yrs = €352k cost of credit. .


 
None of this makes any sense.

Your 2006 home is no different to your 2012 home, is that correct?

You had 7 years of mortgage payments paid on the 2006 home, the years when the interest is the worst.  You paid to sell your house, auctioneer and solicitor.  You paid stamp duty and solicitor to buy.  All your savings were used to pay off the Negative Equity in the 2006 house.

And you did all this and moved with two kids to a house that requires vast work.

Why would you buy a house that is the same as your previous house, if it required you to use all your savings to pay off the first house's NE and leave you with a house that requires a lot of money to fix and is no different to your first house.

What do you mean 'you were offered' a new mortgage in 2012?  Surely you applied for it?


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## nonie (17 Feb 2015)

We got bad advise and we are paying the price for it. Bank of Irelands "premier banking" relationship manager was cold calling us in 2012 and advised we would be eligible for a new mortgage. The Bank advised we had no right to a Tracker so the rate wasn't holding us. We are all individuals and some of us not quite so savvy it would appear than others... or at least that appears to be what you are all getting at... ultimately we were conned into a big error by the Bank and they have the last laugh; another customer off a Tracker.


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