Ombudsman has just uploaded another batch of tracker decisions

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SaySomething

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For what it's worth the Ombudsman uploaded several new decisions yesterday. Several have margins of 1.15% and 0.85% which, if I recall, were Ulster Bank customers. There is also an offset account included in the decision. There is no fully upheld complaint but several partially and substantially upheld. You can find all in the database of decisions on the website. These decisions date up to November 2023. For anybody waiting on news they may be worth a read.
 

It's a bit finicky. Stick in Mortgage and the year but check that the search remembers this. It ignored the year in my first two attempts.



This gives 153 results.

Brendan
 
Remember that decisions up to November 2023 do not include preliminary decisions issued in November. There is a waiting period between the issue of the preliminary decision to the final decision of the Ombudsman. That can be several months.
 
The Ombudsman has updated their database to the end of December 2023.

There were 106 tracker related decisions in 2023.

102 were rejected.

3 were partially upheld.

1 was substantially upheld.

None were upheld in full.

There is an anomaly where appeals against compensation levels awarded either by the bank or the appeals panel will never be upheld in full. The 4 that were partially/substantially upheld relate to compensation levels.

There is no data relating to how long the process took for complainants.
 
102 rejected?

Given the changes to the FSPO legislation - not strictly bound by contract - this sounds like back to Bill Prasifka - is something seriously wrong here?

I heard from a well known advocate that many cases have been pulled and confidence with FSPO from that advocates position is ZERO.

Three things arise. One is that the prospect of a High Court referral frightens the lives of people but regrettably actions of this sort are necessary to unfortunately bring order to chaos. Two the Unfair Contract Terms Directive which has extensive ECJ case law is supposed to feature in each EU MS with some 'body' other than the Courts. FSPO has never referred to it. Third who reviews the FSPO from a QA view apart from the occasional foray into the High Court?

Love or hate Ulster Bank, part of their issue was the flip flopping by FSPO on cases with the same essential facts. I don't know if published decisions form part of Ulster Bank case but for example the FSP is told they are legally bound by the decision. What exactly does that mean? A reasonable interpretation if it was in FSP favour is that it apples to similar cases - and then the next case is a somersault, One what is status now of the previous case? How exactly does FSP deal with not just nuances in a decision but a complete reversal? Does it mean that case decisions are essentially made in isolation in FSPO? It seems like that.

It is the case that FSPO is not obliged to follow previous decisions - but is supposed to explain the rationale. This was fine when decisions were case specific but may have unintended consequences since publication.
 
WizardDr said:
102 rejected?
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WizardDr said:
is something seriously wrong here?
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I take it that you would much prefer if there had been no Central Bank Tracker Examination?

The banks would have refused to give anyone trackers.

Then people would have complained to the Ombudsman and maybe 50% would be upheld and 50% rejected?

You would be happy, but about 30,000 people who got trackers would not get them.

I have read a few of the Ombudsman tracker decisions and agree with most of them. Both the upheld and the rejected.

Most of the rejected ones are crazy. "The bank never offered me a tracker when I took out my mortgage."

I have disagreed on some of the rejected ones but I suspect that they were not argued well.

Brendan
 
And I suspect that I would have rejected some of the ones the Ombudsman upheld.

That is the nature of unbiased, careful consideration. Different judges arrive at different conclusions.



Brendan
 
I would agree with Brendan. Vast majority of the rejected cases are situations where there was not a clear entitlement to a tracker rate.

The Ombudsman has stating for years that they were swamped by these type of cases. Apparently as each has to be investigated independently, it has been significantly slowing the process for legitimate appeals and complaints.
 
It sounds obvious but the Ombudsman remit is to examine each case on its own merit. With the high figures at stake I can see why every complainant is prepared to run the gauntlet for the chance to get a tracker.
 
I looked at the last decision in 2023.

The borrower had a tracker mortgage.
They took out a top-up in 2008 which had an option of a fixed or variable.
There was a brochure at the time which said specifically that trackers were not offered on top-up mortgages. The borrower did not see this brochure.
The borrower claimed that a staff member told them that they could draw down the mortgage on a variable rate and then switch to a tracker when they had drawn down all the funds. The borrower provided no evidence to back up this claim. The lender said that they had no evidence of any such conversation.

The Ombudsman rejected the complaint.

The Ombudsman can refer to EU law or any other law, but they were right not to uphold this complaint. It is a pity that they did not give a summary dismissal of it and then let the borrower appeal it. It would free up the Ombudsman to deal with the systemic issues.

Brendan
 
SaySomething said:
I would agree with Brendan. Vast majority of the rejected cases are situations where there was not a clear entitlement to a tracker rate.
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Equally there were many situations where there was no reference to "standard variable rate" in the mortgage contract yet borrowers were moved on to them after a fixed rate period.
Plenty of mortgage contracts with unclear terms such as "variable base rate" or "prevailing variable rate" which supposedly meant "standard variable rate".
If a borrower was supposed to have moved to a "standard variable rate" after a fixed rate then that's what should have been stated in the mortgage contract. I've seen contracts where the words "standard variable rate" aren't mentioned anywhere , yet that's what borrowers were moved to after a fixed rate period.
 
I would like to make a few comments as it is I who dr wizard refers to
There is now and was then a startling lack of understanding of the mortgage market that existed at the time
The wrong decisions emanating about some matters reflect that also
For example
  1. how a discounted tracker mortgage is not one springs to mind
  2. The kbc flyer and its words has been morphed into something else
These are just two and in response specifically to Brendan above re top up loan why was the whole loan churned to a new loan why wasn’t the existing loan left alone when the bank knew it did not do trackers on equity release
The only equity release was the top up request. The target driven environment to lend is causal here as in better get the full loan as new lending rather than the top up only
Except the bank was obligated to act in its customers best interest
Some of course do not have reason to complain re tracker but others do pad kiss
 
Like a lot of tracker mortgage scandal customers, we are still awaiting the decision from the fspo.

What is more disappointing than the decisions is the totally unacceptable delay in publishing the remaining tracker mortgage decisions.

Based on the present rate we will probably be waiting a number of years before the outstanding cases are published.

We were hoping that there might be some indication in the fspo annual report about some timeline but were disappointed, again.

There are no excuses.
 
I realise Mr Burgess is busy and doesn't read the posts carefully.

1. I do recall welcoming the CBI Tracker Investigation as similar to U.S. in WWII. They were late but the war would not have been won without them. I mentioned nothing at all on the previous post about that but happy to clarify ad nauseam the work of CBI facilitated to a large part by Mr Kissane.

2. I did say previous decisions of the then FSO flatly rejected the tracker arguments at the start. These were overly technical but ignored matters like fairness and a whole range of matters. Without too much controversy FSO at that time was like the Baltimore Bridge - a total undeniable collapse.

3. The Banks systematically refused Tracker on spurious grounds - there is no disagreement here and I said nothing about it in last post.

4. What I have said is that FSPO is flip flopping with similar fact cases now (ignoring the Bill Prasifka era cases) is a particular concern now because FSPO publish their decisions in detail without saying its X and Y. But the industry acts and relies on these cases.

5. On Unfair Contract Terms Directive - having read extensive EU case law on this Directive - where for example the Bank tried to rely on something in the Letter of Offer about a future even the way the jurisprudence was going was that this would be unreasonable on the simple basis that the customer would not have access to Letter of Offer at time say of deciding a fixed rate years later. I am just at a loss why FSPO has not taken up to date views on what is reasonable and not. Even one of the posters above said something wasn't 'clear' and still felt FSPO was right.

6. I also read illuminating judgments by Justice Hogan on PTSB. If you want to see a stinging rebuke read his cases. Essentially saying that PTSB relied on elaborate technical arguments in the early days of tracker which would have won a law student high marks but were as close to fairness to consumers as the moon is adjacent to the Earth.

7. Similar fact cases - whilst of course individual cases need to be examined, it is not the case that they all require the same amount of work.

8. Some of us with a lot of experience have great concerns about Discounted Tracker cases with PTSB and the non-upholding of KBC 'flyer cases' previously resolved by CBI.

9. On the matter of poorly argued cases - if the FSPO has readopted technical legal arguments - bearing in mind that the Bank will have retained expert lawyers for their cases - how is a hapless consumer to argue their case? I might be over kind but I would have thought that if a case is similar to another case that FSPO have upheld or is poorly argued what should happen? It is not equality or arms that is for sure.
 
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I fully agree with you, the time scales here are ridiculous
 
It's several years to have cases adjudicated. The adjudication phase for tracker cases exceeds 2 years. Investigation can take a year or more.

Cases are published online within 3-4 months of a final decision being issued and court appeal risk has passed. If referred to the courts, a tracker case will not be published until the court phase has been finalised.
 
WizardDr said:
I realise Mr Burgess is busy and doesn't read the posts carefully.
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I think we are in agreement on most things.

The main difference between us, and it's a huge difference, is that if the Omubdsman rejects a complaint, you think that the Ombudsman is wrong. I think that the Ombudsman is broadly right in his decisions. I have obviously disagreed with some of them. And as I have said above, I would have given trackers to some people he refused and not given trackers in some cases where he did restore them.

The badly argued case is a problem. I have seen some good complaints very badly presented and argued. Complainants and their advisors often, I would almost say, usually, let off steam on irrelevant issues and this plays into the hands of the banks. The issues are usually fairly clear cut. The complainant should focus on the simple issue and not either go off on tangents or respond to the banks trying to take them off on tangents.

I was very worried with the AIB Prevailing Rate case. Some of the arguments put forward by the borrowers were bonkers. I was worried that the Ombudsman would dismiss a complaint before we got our complaint adjudicated. I thought that if he had rejected a complaint on the issue, the bar would be much higher for us.

Different judges will make different decisions on the same facts. So we have had 4 different Ombudsmen since the office was set up. Of course, they will reach different decisions from time to time. And the judges are usually guided by precedent. The Ombudsman is not which is a bit of a problem for the bank, but great for the consumer.
 
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