Here is my reply from CB on lenders prevailing rate query:
In relation to prevailing rate issues in general, the Tracker Examination has identified that wording of customers’ mortgage contracts i.e. the terms and conditions attached to their mortgages, vary widely both within and between lenders. Given the variance in the contractual terms identified, not all cases may be treated the same for the purposes of the Examination in respect of determining affected customers for the purposes of redress and compensation.
Yours sincerely.
CB seem to be leaving it to banks individual interpretation.
Interesting response from CB,
It would seem they are assisting the major bank in limiting liability. From a legal imperative.
However the statement is very open and does not shut the door on civil action. However the law in this country does not allow for a class action, a class action would certainly clarify the wording and it’s orignal intent.,
What needs to be proved, would any reasonable thinking person have read and interperated the Prevailing rate statement as you and many others.
It’s a double edged sword, on one side you read it as tracker rate.
On the other side the bank reads it as a flexible term that has no fixed point in time in some, cases and a fixed point in time in others.
However the fact they have had to admit to making a mistake with the cohort means there interpretation of there own statements will always weigh in there favour.
If the Broker flyer had not been highlighted as significant there would be no cohort. The bank would have continued to charge at SVR rate 4.5%
What is needed is a test case, run against the bank and the ombudsman office.
I would urge you to research the MILLER V Danske bank. The ruling on this was a disgrace and had government interference written all over it. “This is supposition not a fact and a personal opinion”
In my opinion the the appeals court was wrong, and again any reasonable person taking a loan would expect interest rates to move up and down in line with the central bank of Europe. As they set rates for the whole of Europe.
1,) Current Market Conditions, Ambigious to be sure. Again banks win this arguement.
APPEALS COURT RULLED THAT, the above statement ment “Market Conditions in general”
2,) prevailing interest Rate, this statement is not ambiguous it clear English and Dictonary interpretation is clear.
The point here is, the ombudsman would be speaking out of both sides of his mouth if he interpreted the above statement as anything other than what it says in plain English.
Those in limbo should pool some funds and test this in a court.
If there are any solicitors or budding law students among you or your children.
It is well worth going after.
Reference text is from the IRISHTIMES.com I hope this is not copyright, if so apologies for re quoting.
Last September, the
High Court ordered the Ombusdman to reconsider the complaint by Kenneth and
Donna Millar, Strand Road, Portmarnock, Co Dublin.
The Millars have a home mortgage and six other buy-to-let investor mortgages on variable rates with Danske Bank.
The complained about Danske’s decision to hike its variable interest mortgage rates to more than four per cent when the
European Central Bank(ECB) rates were almost zero.
The Ombusdman rejected the complaint and when then High Court judge Gerard Hogan ruled the decision should be reconsidered, it lodged an appeal, as did the bank.
A three-judge Court of Appeal on Wednesday ruled
Mr Justice Hogan had erred in his decision and restored the Ombusdman’s finding.
In one of two separate judgements, Mr
Justice Peter Kelly said he disagreed with the High Court’s conclusion that a clause in the loan agreement referring to “market conditions” meant “market conditions generally”.
“I do not share that view nor do I agree the clause in question is ambiguous”, he said.
The Ombusdman was correct in rejecting a “contrived construction” which the Millars sought to place on that clause, he said. The Ombusdman was also correct in finding the wording was clear, he said.
In her separate judgment,
Ms Justice Mary Finlay Geoghegan said the case should not be remitted back to the High Court because it had not been established the Ombusdman was in serious error.
The Millars had not established the Ombusdman was in error in finding the bank was not in breach of the terms and conditions of the loan agreement in making increases in 2011 and in rejecting their complaint as unsubstantiated, she said.