D
Dan Murray
Guest
Understandably, there is a lot of emotion in this debate. For those directly impacted, "debate" is too slight a word.
In the spirit of understanding the issues better, I'd like to comment on something Brendan said - which was essentially that if the contract clearly stated that borrowers would not get their tracker back at the expiry of the fixed term, then this means that.......borrowers would not be getting their tracker back.
I understand why Brendan might take this position. It is reasonable to assume that the written contract is the basis of any agreement. However, I do not agree with the absolute nature of Brendan's position. In my long experience in business, one thing that I have learned is that things in general and the law in particular are not always black and white. In simply terms, taking absolute positions [as in.....borrowers will not be getting their trackers back........based on only part (i.e. the written contract) of the overall circumstances.....is, to quote Sir Humphrey, very brave.]
One thing that I have noticed in threads to do with the tracker issue is the relative absence of contributions from the legal eagles within the AAM community. I would like to set out a scenario (which is very similar to a real life case of which I am aware) and ask our legal friends to comment on whether Brendan's certainty in relation to the absolute determining nature of the written contract is justified in these circumstances.
1. Individual bought 2 investment properties on a tracker basis with BOI in 2003.
2. Circa 2 years later, he fixed the mortgage on property 1.
3. A further 15 months later, he fixed the mortgage on property 2
4. At the expiry of the fixed term on property 1, the tracker is restored, in line with the written contract.
5. At the expiry of the fixed term on property 2, the tracker is DENIED, in line with the written contract.
6. Both trackers were with BOI and the same individual was the relevant bank contact in relation to the initial property purchases and also at the time of initiating the fixed periods.
7. This bank official (now ex-BOI) is prepared to swear an affidavit/testify that he:
(a) was unaware that the tracker would be lost upon "fixing" in relation to loan 2
(b) assured the client that he would have the right to return to his tracker at the expiry of the fixed term in relation to property 2
(c) did not provide any warnings in this regard in compliance with the Consumer Protection Code
(d) would not have been able to provide any warnings in relation to the CPC because he was unaware that there was anything about which to warn clients!
I think that's the general gist of the case - looking forward to contributions from all but especially our esteemed legal friends!!
In the spirit of understanding the issues better, I'd like to comment on something Brendan said - which was essentially that if the contract clearly stated that borrowers would not get their tracker back at the expiry of the fixed term, then this means that.......borrowers would not be getting their tracker back.
I understand why Brendan might take this position. It is reasonable to assume that the written contract is the basis of any agreement. However, I do not agree with the absolute nature of Brendan's position. In my long experience in business, one thing that I have learned is that things in general and the law in particular are not always black and white. In simply terms, taking absolute positions [as in.....borrowers will not be getting their trackers back........based on only part (i.e. the written contract) of the overall circumstances.....is, to quote Sir Humphrey, very brave.]
One thing that I have noticed in threads to do with the tracker issue is the relative absence of contributions from the legal eagles within the AAM community. I would like to set out a scenario (which is very similar to a real life case of which I am aware) and ask our legal friends to comment on whether Brendan's certainty in relation to the absolute determining nature of the written contract is justified in these circumstances.
1. Individual bought 2 investment properties on a tracker basis with BOI in 2003.
2. Circa 2 years later, he fixed the mortgage on property 1.
3. A further 15 months later, he fixed the mortgage on property 2
4. At the expiry of the fixed term on property 1, the tracker is restored, in line with the written contract.
5. At the expiry of the fixed term on property 2, the tracker is DENIED, in line with the written contract.
6. Both trackers were with BOI and the same individual was the relevant bank contact in relation to the initial property purchases and also at the time of initiating the fixed periods.
7. This bank official (now ex-BOI) is prepared to swear an affidavit/testify that he:
(a) was unaware that the tracker would be lost upon "fixing" in relation to loan 2
(b) assured the client that he would have the right to return to his tracker at the expiry of the fixed term in relation to property 2
(c) did not provide any warnings in this regard in compliance with the Consumer Protection Code
(d) would not have been able to provide any warnings in relation to the CPC because he was unaware that there was anything about which to warn clients!
I think that's the general gist of the case - looking forward to contributions from all but especially our esteemed legal friends!!
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