First Active Lost Tracker but switched Mortgage

rodger said:
It's not the issue whether FA had a tracker offering or not.
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That's precisely the issue.

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

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

You can argue about what is meant by the prevailing rate but there is no doubt but that the lender is required to make a tracker available in these circumstances - even if the lender no longer offers trackers to new customers.
 
If that is the case and what you're saying sounds reasonable, then there is the consumer protection argument that it was not flagged very well that the prevailing offering might be zilch. I mean it suggests to me something that might vary up and down but not disappear completely.

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

Can the FRA override those terms in a single letter?

If the original terms set out a tracker for the life of the loan then it seems like the bank was sneaking something into the mix with this FRA.
 
Yes, a single FRA can amend the terms of the original loan agreement. The relevant extract from the fixed-term contract looks perfectly clear to me and I don't see anything disguised or deceptive in the wording.

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to think that any lender was drafting their contracts back in 2006 with any expectation that tracker offerings would be withdrawn within the life of any fixed-term contract written at that time.

Totally different considerations were at play in the summer/autumn of 2008 and there were certainly press reports at the time that some lenders were cold calling borrowers with attractive fixed-rate offers specifically with a view to luring them off trackers. If there is any truth to these rumours then, in my opinion, the Central Bank should throw the book at any institutions or officials involved.
 
Acknowledge the prior comments, however in fairness I don't think one can be so definitive without looking at all the facts and circumstances. There were no definitions of what prevailing meant, time of transfer was not defined, etc in the letter. There was no warning that if you were on a tracker that it would not automatically go back onto it, the tracker should have been the default option surely? There are critical terms and statements that the bank has now sought to rely on and yet were not defined or clarified at the time in 2006. I am seriously puzzled as to how someone can now state that the "relevant extract ............ looks perfectly clear to me". Would they have been so clear to you in 2006?

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

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

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

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

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

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

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Gerard123 said:
the tracker should have been the default option surely?
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The FRA certainly could have provided that the borrower would default back to the tracker at either the original margin or the prevailing margin at the end of the fixed term and such a provision certainly wouldn't have been uncommon in other FRAs at that time. Unfortunately, the FRA in this case clearly provides that the mortgage defaults to a standard variable rate (not linked to ECB) unless you request another product offering at the end of the fixed term.

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

Gerard123 said:
The deception and inappropriate use of documents occurred post then when UB sought to justify its decision not to return FA customers who were on trackers, customers who could have reasonably expected to go back onto trackers at the end of the fixed term.
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Could you clarify what "deception" or "inappropriate use of documents" occurred after the UB takeover?

My comments are limited to the wording from the FRA as previously posted - is there any other relevant documentation or factual circumstances?
 
Sarenco said:
I don't think there is anything ambiguous or unclear in this regard in the contract wording.
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The FSO stated in writing to me in its final ruling letter that the Bank (UB) had confirmed in a letter to the FSO that the letter I signed with the para containing prevailing tracker was not enough to amend the interest rate of the Complainant's loan. This is fact, I have it in writing from the FSO in their findings. If the wording is clear to you fair enough, the Bank have stated in writing to the FSO the above which hardly suggests a clear letter/para?

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

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

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

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

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

I have shared information and documentation with the Central Bank last year.
 
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Sorry Gerard but I think I was very clear that I was only interpreting the wording of the quoted extract from the FRA and not any other documentation or surrounding factual circumstances.

I really don't know why you are getting agitated at my comments.:(
 
Apols, not meaning to get agitated but it does require preciseness, that's what I was seeking to do. I have edited some of the 'sharper' comments as wasn't intending offense.

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

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

Anyway I will leave it with the CB.
 
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Sarenco: as they say, hindsight is 20/20, and arguing the contract law aspects all you want does not change the fact that

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

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

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

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

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

I have no particular insight into the Central Bank's review or investigation beyond what they have stated publicly.
 
Would still like to see one of the FA maturity options letters from 2008ish, did anyone get a copy of their one?
 
What letter is that exactly, don't understand the phrase FA Maturity options letter - do you mean the letter signed in 2006 on entering the fixed rate or the letter that the Bank provided close to when the fixed rate expired?
 
Gerard123

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

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

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

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

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

This was all set up to get people off trackers plain and simple.
 
Just looking at last posts.

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

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