First Active Lost Tracker but switched Mortgage

[Gerard123]

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

 

[Sarenco]

Hi Gerald

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

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

 

[Gerard123]

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

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

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

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

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

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

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

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

 

[Brendan Burgess]

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

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

• They could argue that there is no prevailing tracker, although I think that the FSO has dismissed this argument
  
• They could argue that the prevailing tracker is ECB + 5%, and I don't think you would have much counter argument.

3) If UB wrote to you offering you some options but not a tracker, then it's also unclear. Were they bound to offer you "the prevailing tracker"? By not offering it to you, were they trying to get you to avoid requesting a tracker?

 

[Sarenco]

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

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

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

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

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

 

[Gerard123]

Brendan.

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

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

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

 

[Gerard123]

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

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

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

 

[notabene]

Ha! This is a very interesting one.

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

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

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

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

View attachment 1212

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

 

[corktim]

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

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

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

 

[corktim]

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

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

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

 

[corktim]

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

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

 

[Sarenco]

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

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

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

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

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

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

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

 

[rodger]

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

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

 

[peemac]

You fixed in October 2006.

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

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

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

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

 

[Sarenco]

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

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

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

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

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

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

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

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

 

[Sarenco]

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

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

 

[Gerard123]

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

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

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

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

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

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

Thanks again.

 

[corktim]

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

1. A regulated entity must ensure that all information it provides to a consumer is clear and comprehensible, and that key items are brought to the attention of the consumer. The method of presentation must not disguise, diminish or obscure important information.
   
   SUITABILITY
   
   30 A regulated entity must ensure that, having regard to the facts disclosed by the consumer and other relevant facts about that consumer of which the regulated entity is aware:
   
   1. a) any product or service offered to a consumer is suitable to that consumer;
      
      
   2. b) where it offers a selection of product options to the consumer, the product options contained in the
      
      selection represent the most suitable from the range available to the regulated entity; or
      
      
   3. c) where it recommends a product to a consumer, the recommended product is the most suitable product for
      
      that consumer.
      

 

[Sarenco]

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

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

 

[corktim]

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

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

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