Lost tracker more than 6 years ago, but still being overcharged today.

Discussion in 'The Financial Services Ombudsman' started by corktim, Mar 8, 2016.

  1. corktim

    corktim Frequent Poster

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    Hi Brendan,

    Thanks for posting this today as I would never have known about it.

    I had a UB tracker and fixed in 06, wasn't offered it back in Aug '08 when it expired even tough trackers were still available. Complained in '15 and was told by FSO I was outside 6yrs.

    I argued that the reason for my complaint was that I was being overcharged to this day so it's a current issue. The conduct complained about here is overcharging and was made in 2015. FSO have agreed to review my challenge but it has been a number of months with no decision .

    Could I use the defence in the Stowe case if they are successful?

    Tim
     
  2. Brendan Burgess

    Brendan Burgess Founder

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    This is a very interesting question and is very different from the Stowe case so I have moved it to a separate thread.

    The substance of the case
    If there is no substance to your case, then it doesn't matter if the case is statute barred or not.
    So first, we have to figure out whether you have a case or not.

    Were you entitled to a return of your tracker in August 2008? Whether they were available or not is simply irrelevant. If you were entitled to one, you should have got one. If you were not entitled to one, you should not have got one.

    To be entitled to one, your contract and fixed rate agreement, when interpreted together, would have had to say that you were entitled to a tracker on the expiry of the fixed rate.

    So that is your first issue. What is your justification of saying that you were entitled to a tracker?

    The Central Bank review of tracker issues
    The Central Bank has told the lenders to review all lost trackers, irrespective of the date of the loss. There is no 6 year time limit on this.

    So you should write to Ulster Bank and ask them to confirm that your case is being reviewed as part of that review.

    I don't think that the Stowe case applies to you
    The Stowe case is about the admissibility of evidence over 6 years old. You don't suggest anywhere in your post, that there is any evidence over 6 years old which is being disputed. But then you haven't really outlined your case.
     
  3. Black_Adder

    Black_Adder Frequent Poster

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    I assume this is a Ulster Bank case where Ulster Bank refused to reinstate a tracker mortgage despite being for 'life of loan' with the intervention of a short fixed rate period - and UB saying that's the end of the tracker - without having real substance to so do except the FSO lost its way and the Central Bank stayed miles away.

    Continuing conduct would be the angle to extend the six year period.
    But you must also specifically raise all and any of the relevant matters or the FSO (at least up to now wont do for you)
    You will need to file a complaint with UB and they will prevaricate, huff and puff, and go on for weeks and then say 'get lost'.
    [RBS - coming your way soon]
    But you can register with FSO now.

    One particular interesting approach - are you of the view that you have wrongly deprived of your tracker? Potentially taking somebody's money without authority and with the intention of not paying it back - is er theft.

    If it were me - I would call Padraic Kissane but your choice.
     
  4. corktim

    corktim Frequent Poster

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    Last edited: Mar 8, 2016
    Hi Brendan,

    My view is that i was entitled to the return of my tracker in 2008. My original letter of offer stated :

    “the rate of interest will never be higher than the European Central Bank (ECB) base rate plus 0.95%”. Also the heading here states “requires no further action”.

    When signing my fixed rate agreement it stated:

    [​IMG] Tracker 1.png [​IMG]

    This clearly states that i would go onto a variable rate however i didn't take notice of this as it also states that i would still have the option of taking a tracker. I know there is a challenge around the word prevailing but if i have an original letter of offer that states the rate will never be higher than 0.95% above ECB you would think that prevailing is 0.95% + whatever the ECB is at the time.

    My comment Re: Stowe was that UB told me that i was outside the 6yr rule and more or less stonewalled be because of this.

    FSO is reviewing my challenge but unsure as to how similar UB/FA cases have been dealt with.
     
    Last edited: Mar 8, 2016
  5. corktim

    corktim Frequent Poster

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    Black Adder correct that it is UB and their responses change each time I challenge them.

    As for theft I don't have the knowledge to go after this.
     
  6. Brendan Burgess

    Brendan Burgess Founder

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    I would not think anything of the sort. I would think that the Fixed Rate Agreement supersedes the original contract.

    The key issue here is whether or not you requested a transfer to the prevailing tracker mortgage offering at the time. If you did make such a request, then you should have been offered the prevailing tracker.

    I think you certainly have a case, but I am not sure how strong it is.


    I have said it before - that is not what Stowe was about. Stowe was about evidence and not the complaint.

    The "behaviour complained of here" presumably is what happened when the fixed rate period was up which was August 2008 which was over 6 years before you made your complaint.

    What aspect are they reviewing?

    Is the behaviour ongoing?

    If they should have put you on a tracker in 2008, then they started overcharging you in 2008. But you could argue that the behaviour is continuing. I think that this is a weak argument under the circumstances. But it's worth making.
     
  7. corktim

    corktim Frequent Poster

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    Brendan I would not think that the agreement to take a fixed rate would supersede the original letter of offer but more amend the terms in relation to fixing the rate.

    UB wrote to me saying that the fixed rate agreement I signed was a tracker removal letter. If this was the case then why did they refer to my option to take a tracker rate on expiry of the fixed.

    In relation to transferring to a tracker rate post fixed rate I was never offered this option,only fixed or SVR. With what I know now I should have been clearly given this option as stated in the fixed rate agreement.

    I have requested the rate option letter that was sent to me before my fixed rate expired and on a number of occasions, even as part of a subject access request and they say they don't have this letter. The only item out of all of my correspondence...how convenient.

    Ombudsman is reviewing my argument in relation to this being a current overcharging issue.
     
  8. Brendan Burgess

    Brendan Burgess Founder

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    upload_2016-3-8_22-44-16.png

    There was no onus on them to offer you a tracker in my reading of this wording.

    It puts the onus on you to request a new fixed rate or to transfer the mortgage to the prevailing tracker.

    That is very different from the wording used in some other contracts which says something like "On expiry of the fixed rate period you will be offered a choice of tracker rate or fixed rate. If you don't choose one of these, you will default to the SVR" People in this category who were not offered a tracker have been given them back.

    Your case is not as strong and I have no idea how the FSO has interpreted this wording.

    Brendan
     
  9. corktim

    corktim Frequent Poster

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    Banks are obliged under CPC 2006 to provide me with all of the options available. The onus should not be on me two years after signing this fixed rate letter to ask for the transfer.

    CPC 2006:

    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.

    The option to transfer to a tracker would be a key item.

    Also,
    1. 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.
    Again clearly the most suitable option would be to transfer too the tracker rate. I should have been clearly advised of this option.

    Agree that my case is not as strong as with other lenders but UB had a duty to at least advise me clearly of my option to transfer when my rate options letter was sent to me in advance of my fixed rate expiring.
     
  10. Brendan Burgess

    Brendan Burgess Founder

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    That is an interesting point and worth making. Not sure if it would persuade the Ombudsman. They told you clearly at the time of fixing that you would go onto the SVR unless you chose a different option.

    With hindsight, this would have been the best option. But a lot of people were choosing SVRs at the time instead of trackers. So it was not "clearly the most suitable option".

    Brendan
     
  11. corktim

    corktim Frequent Poster

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    Its a valid point but CPC 2006 placed a clear onus on lenders to be clear and honest in its dealing with customers.

    UB did clearly state i would go to SVR but they should have outlined all of my options before my fixed rate expired. They also said in my fixed rate agreement in 2006 that in addition to having to request a trasfer to a tracker rate, i would also need to request a fixed rate. They did write to me outlining the fixed rate options available to me without me having to request them so why not do the same with the tracker option?

    I know that hindsight is a great thing but i should still have been offered the option.
     
  12. Brendan Burgess

    Brendan Burgess Founder

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    I think you have a case to argue, but it's not at all clear.

    Your contract did not say "You will be offered a tracker when your fixed rate is up". Your contract said "You will go onto an SVR unless you request a fixed rate or transfer your mortgage to a tracker".

    It seems that you did not request a transfer to a tracker, so I imagine that Ulster Bank have covered themselves.

    You could argue that putting the onus on you to request a tracker was unfair.

    Brendan