Tracker Mortgage Decision Reference 2022-0302

• Case Outcome: Rejected
• Reference: 2022-0302
• Date: 31 August 2022
• Year: 2022
• Subject Matter: Tracker Mortgage
• Finantial Sector: Banking
• Conducts Complained Of: Failure to offer a tracker rate at point of sale

Decision Ref:

2022-0302

Sector:

Banking

Product / Service:

Tracker Mortgage

Conduct(s) complained of:

Failure to offer a tracker rate at point of sale

Outcome:

Rejected

LEGALLY BINDING DECISION OF THE FINANCIAL SERVICES AND PENSIONS OMBUDSMAN

Background

This complaint relates to a mortgage loan account held by the Complainant with the

Provider. The mortgage loan which is the subject of this complaint is secured on the

Complainant’s principal private residence.

The loan amount was €150,000.00 and the term of the loan was 30 years. The Letter of

Approval dated 17 September 2008 details that the interest rate applicable to the loan

was a one-year discounted variable interest rate of 5.75% for the first 12 months of the

loan.

The Complainant’s Case

The Complainant details that, following a separation from his former partner, he “applied

for a top up of an existing mortgage” in 2006. The Complainant outlines that “[t]his was a

tracker product” however, as his separation was not finalised until 2008, the loan

application had expired, and he had to reapply.

The Complainant states that his loan application dated 20 June 2008 “clearly outlines the

product as being a discounted tracker”. The Complainant submits that his subsequent loan

application was successful in 2008 and he received the paperwork confirming this from the

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/Cont’d…

Provider on 17 September 2008, at which stage he went to his solicitor to sign the

paperwork.

The Complainant outlines that in February 2009, he received a telephone call from an

employee of the Provider “to say [his] loan approval would expire and [he] would lose the

tracker” if he did not draw down the loan, “at which point [the Complainant] went ahead

and completed the transaction”.

The Complainant details that shortly after his repayments commenced, he “realised that

[his] account was not actually on a tracker” interest rate and so he contacted the Provider

to “query the account”. The Complainant states that he made further contact with the

Provider in June 2009 and was informed that the interest on his loan account was

calculated at the Provider’s standard variable interest rate and the reference to a

“Tracker” in the Statement of Suitability was an error. The Complainant states that he

wrote again to the Provider “to query the issue and have received copies of all

correspondence to which [he is] unsatisfied”.

The Complainant notes that the Provider acknowledges that there “is an information error

within the statement of suitability”, which was issued to the Complainant in conjunction

with his loan documentation. The Complainant submits that the Provider has said that the

Statement of Suitability “quoted the incorrect Mortgage product under the proposal

heading on page 1”. The Complainant asserts that he does “not work in finance nor [does

he] have any expertise in calculating mortgages” and that he “merely signed the

paperwork” in front of him, which described his mortgage product as a “Tracker – A

variable interest rate that is linked to ECB rates”. The Complainant contends that all of the

documentation “went on to describe the product as the variable rate which [he] assumed

to be the tracker product”. Further, the Complainant contends that the Provider’s

description of a tracker interest rate in the Statement of Suitability “along with the

application for a tracker mortgage was misleading” and the Complainant accepted the

contract “based on the [Provider’s] own error”.

The Complainant asserts that although he obtained independent legal advice, in

circumstances where the Provider’s “own definition of a tracker” was described as “being

variable in the statement of suitability”, he “was not fazed by the fact that the word

“variable” was subsequently used” in the mortgage loan agreement. The Complainant

states that he believed that the term “variable” was referring to the tracker interest rate

as proposed by the Provider in the Statement of Suitability.

The Complainant states that the Provider “say[s] there was an error in their statement of

suitability, however this “error” has cost [him] tens of thousands of euros”. The

Complainant contends that the Provider “should be accountable if [its] paperwork mis-sold

[him] a mortgage product”. The Complainant details that as his existing mortgages were