# Are we entitled to tracker/BOI Sharp Practice



## jburn (11 Oct 2014)

Please forgive the long nature of this post but we want to set out all the facts and we welcome any feedback from members.

1. We are two professionals that bought an apartment in 2006. We were offered tracker by BOI on 9 May but a 12 month reduced interest rate instead of a 24 month (as had been agreed to by the bank ) was included in this offer letter. 
2. We promptly notified the branch of this. 
3. The bank issued a new offer letter on 11 May (just two days later and apparently on foot of an oral direction from the branch given on 9 May) including the agreed reduced 24 month rate- but also unilaterally and without any notice (written or oral) to us removing the tracker rate included in the offer letter of 9 May. 
4. At no point had it being represented or made in any way clear to us that the application of the agreed 24 month reduced rate was going to lead to the removal of the tracker rate.  We would have been idiots to surrender the tracker offered to us for an additional reduced rate of 24 months over 12 and reiterated that this scenario had never been raised by the relevant representative of the Bank with either of us.

The bank orally responded that

1. The rate with the 24 month discount was a different rate from the tracker and you could not be offered both. 
2. The Bank accepted that they offered us the tracker but that a named individual from the branch rang them on 9 May asked them to apply the 24 month reduced rate. We asked if the named individual also asked them to disapply the tracker.  It seems no such note was received from the named individual from the branch on this count.   
3. We were then told " and sure you would have received a letter in November 2008 giving you the option of the different rates available to you including the tracker". No such letter being sent.  The bank has since told us this is because trackers were removed in October 2008.  The bank insisted that the tracker was open to us at anytime to take up.  When put to the bank that they never communicated this to us (either in the letter of 11 May 2006, on the two year anniversary of the initial payment in November 2008 or any other time) the bank's reply was "well it was publically known at the time".  
 4. We subsequently received a final letter from the Bank essentially saying that we just victims of bad look that tracker mortgages were withdrawn October 2008 and our initial 24 month reduced rate ran out in early November 2008- they invited us to submit our case to the Financial Ombudsman.

We cannot recall the exact date that we discovered that we were not on a tracker but was probably in late 2010.  We subsequently fixed our mortage in March 2011 for 3 years.  We are now on SVR.

The banks second letter issued 2 days after offering the tracker did contain the usual warning that this superceded the offer letter.

We have asked the bank for our application form to see if it mentioned a tracker but the bank claim that it was "manually keyed" and that they have no record.

We would appreciate any of the members views on our case and in particular:

1. It it our own fault that we did not read in detail the second offer letter which removed the tracker (which the bank were happy to offer us just two days before) and the bank are entitled to rely on the contract?
2. Alternatively do we have a case that the bank should have drawn our attention to the removal of the tracker and that given our intention was to sign up to a tracker this should be reinstated. In short we think this was very sharp practice by the bank.
3. Should the contract be rectified to include the key tracker rate term as we entered into the contract on a fundamental mistake.
4. As the contract was made in November 2006 (though we did not discover till much later) are we within the time limit for applying to the FO?
5. If we go down the legal route are we within the statute of limitation periods.

Thanks in advance.

Jburn


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## Monbretia (11 Oct 2014)

The only thing I would point out here is that you know the benefit of the tracker because of hindsight.  In 2006 no one knew they would become so valuable.  I doubt it was sharp practice, it simply seems to be to be two different product offerings that they had at the time, one had tracker and 12mths discount, one had 24mth discount and no tracker.  Nothing unusual in that, there were lots of different variations of mortgage products offered by each bank.

I worked in mortgage lending in 2006 and it was difficult sometimes to get people to go for a tracker, a lot liked the fixed or even the standard as it was what they were familiar with.  Naturally with the benefit of hindsight they now feel hard done by but equally at the time they were taking out the mortgage they felt it was a product being pushed by the bank, which it was, so a choice made at that time cannot be compared to the choice you would make based on the knowledge you now have if you could go back in time.


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## Brendan Burgess (11 Oct 2014)

You have a very good case here.   All this means is that it is worth taking to the Ombudsman. You may or may not win.

*The time limit problem*
This could be a problem for you.  The "behaviour complained of" must be within 6 years of the complaint.  If you complain about the way they issued you a new letter in May 2006, you are outside the time limit.



> 4. As the contract was made in November 2006 (though we did not discover till much later) are we within the time limit for applying to the FO?



I think you have to complain about the behaviour in 2008. So you must make this absolutely clear in your letter of complaint to the Ombudsman.

Your dates are a bit confusing 



> our initial 24 month reduced rate ran out in early November 2008- they invited us to submit our case to the Financial Ombudsman.



So you got the offer in May 2006, but did not take out the mortgage until November 2006?   This might give you more ammunition.


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## Brendan Burgess (11 Oct 2014)

*The substance of the complaint *
You agreed a tracker mortgage with a 24 month reduced interest rate.  If you have the correspondence which supports this  claim e.g. emails, an ad, or a record of a phone call, then you have a stronger case.

When they reissued the contract, did it include a covering letter saying something like "please find enclosed contract amended to change the discount period to 24 months".  If they did, this supports your case.



> 3. We were then told " and sure you would have received a letter in November 2008 giving you the option of the different rates available to you including the tracker". No such letter being sent.



I don't think that this is especially relevant. According to your contract, you were not entitled to a tracker. 

  I suspect you did get a letter from the bank, but haven't kept it.  But if you did not get a letter, you should have asked the bank about your rate on expiry.  You should have raised the issue at that stage of not being offered a tracker.


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## Brendan Burgess (11 Oct 2014)

*How best to approach this?*

Bank of Ireland has probably dealt with this issue before with the Ombudsman. They know what works and what does not work. This puts you at a huge disadvantage.

To tilt the odds a bit more in your favour you need to use a professional such as Padraic Kissane, who posts on askaboutmoney, to progress your case for you. If he feels you have no case, he will  let you know immediately.


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## jburn (11 Oct 2014)

Thanks Brendan.  One further query- when you say we have to complain regarding the banks behaviour in November 2008 what behaviour are you referring to?  Is it the fact that we understood we would have a tracker rate at that point?  Regarding your queries on the dates we signed the offer letter in May 2006 but did not draw down until November 2006.

We are very happy to engage the services of a professional to help us on this.


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## twofor1 (11 Oct 2014)

jburn said:


> 4. We subsequently received a final letter from the Bank essentially saying that we just victims of bad look that tracker mortgages were withdrawn October 2008 and our initial 24 month reduced rate ran out in early November 2008- they invited us to submit our case to the Financial Ombudsman.


 
BOI appear to be acknowledging that had trackers not been discontinued that you would have been entitled to a tracker.

As you received this letter after November 2008, it's still within the 6 year limit. I think your complaint to the FSO should be something like - BOI refused to give you a tracker in Nov 2008 as they were withdrawn earlier that year.

All banks discontinued trackers for new business, but they still have to offer them to existing customers whose agreements state a tracker is an option at some point in the future.

What happened in 2006 is now outside the FSO’s remit, so no point in going there.

You have missed the boat once already, you only have a couple of weeks left to get your complaint in regarding the Nov 2008 tracker refusal.


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## PadKiss (11 Oct 2014)

Hi all
jburn i have written an email reply to you on your matter but I wish to highlight a very important point being made by 'twofor1' and that concerns the 6 year rule. It is from November 2008 that people began to exit their fixed rates and were not offered their tracker margins back. It is crucially important to tell everyone who may have been told by their lender that they were not entitled to a tracker margin to get the documentation checked as I hope I have shown in the fact that I have now defeated 6 lenders who have to return their customers to their tracker margins. I will be increasing the exposure of the 'time running out issue' in the next couple of weeks in the press but people need to act quickly because the lenders are going to be a quiet as mice until the 6 year passes for all accounts and you can be certain that they are aware of every single case that passes the 6 year time rule because of the effect it will have on their figures going forward. This could not be counted on with any certainty before the 6 year time frame is up. There are and have to be 1,000's of people out there who believed their lender at the time and I am setting about to find everyone that is entitled to their tracker margin to have their margin restored. Spread the word that the clock is ticking and its at it loudest in each of the banks. Don't let them away, without, at the very least questioning if the info given was correct. I have too many examples that suggest that it was not. Talk soon Padraic


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## jburn (12 Oct 2014)

Thanks all- twofor1 your point is intriguing and seems worth a shot to me. It is true that BOI have told us we would have been offered a tracker if they had not been withdraw. However it is not correct that the second letter has a term to that effect. So not a slam dunk.


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## twofor1 (12 Oct 2014)

jburn said:


> However it is not correct that the second letter has a term to that effect. So not a slam dunk.


 
True, but from what you have posted it appears you have a Final Response in writing from BOI saying you cannot have a tracker as they discontinued them in Oct 08 and your reduced rate expired in Nov 08.

To me that is acknowledging that a tracker was an option even if not stated in the second offer letter, and confirms what they told you verbally that the tracker was available to you prior to them withdrawing trackers.

So it appears the tracker option is not been disputed by BOI, they simply refused to give it on the basis that trackers are discontinued.

If this is their only argument, then I think you have a very good case.

You have nothing to lose and a lot to gain, go for it.


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