Tracker Mortgage Decision Reference 2023-0136

• Case Outcome: Rejected
• Subject Matter: Tracker Mortgage
• Reference: 2023-0136
• Date: 28 June 2023
• Finantial Sector: Banking
• Conducts Complained Of: Failure to offer a tracker rate at point of sale

Decision Ref:

2023-0136

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 Complainants with the

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

Complainants’ private dwelling house.

The loan amount was €100,000.00 and the term of the loan was 20 years. The Mortgage

Loan Offer Letter dated 22 August 2009 detailed that the interest rate applicable to the

mortgage loan was a two-year discounted variable interest rate at 5.29%.

The mortgage loan was drawn down under mortgage loan account ending 5665 on 08

October 2008.

The Complainants’ Case

The Complainants state that they applied for a “top-up” mortgage with the Provider “at a

tracker rate equivalent [to their] existing mortgage and that the bank manager responded

in kind with an offer” in April 2008. In this regard, the Complainants seek to rely on email

correspondence between the Second Complainant and a manager of a branch of the

Provider dated 11 April 2008.

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/Cont’d…

The Complainants contend that the email correspondence in April 2008 indicates that they

were not seeking a loan “on separate or different terms to what [they] enjoyed on [their]

existing mortgage”. Rather, the Complainants are of the view that they requested the

same tracker interest rate that applied to their existing mortgage to be applied to the top-

up loan and that the Provider made an offer of a tracker interest rate, which they

accepted. The Complainants outline that they “trusted the Bank Manager” and with whom

they had a “very good relationship”.

The Complainants explain that they provided “estimates of the amount [they] intended to

borrow, i.e. 60K, 70K and 80K, with the intention to obtain indicative repayment amounts

based on the actual interest rate that pertained to [their] other tracker rate mortgages on

that date”. The Complainants maintain that the amounts quoted by the Provider “were

based on an actual interest rate available at the time” and that the rate in question was a

tracker interest rate on which their then existing mortgage operated as of 11 April 2008.

The Complainants are of the view that the Provider is attempting to “misconstrue the

obvious import” of the email communication in April 2008.

The Complainants detail that in the intervening period up to signing the Mortgage Loan

Offer Letter, the Provider “changed its position and ultimately removed the option of a

tracker rate”. The Complainants contend that a manager of the Provider retracted the

offer of a tracker interest rate in the “months following”. The Complainants submit that as

the “scale of the financial crisis started to become clear” the Provider “would have a clear

incentive to retract any offer made but not yet subject to written contract and to remove

trackers as an option”. The Complainants are of the view that the Provider “took

advantage of the fact that [they] were under pressure to complete the mortgage

application at the time and they leveraged [their] trust in the Bank manager to achieve

their goal of denying [them] a tracker rate”.

The Complainants assert that at the time of the approval of the mortgage loan in August

2008, they were not offered a tracker interest rate. The Complainants detail that they

requested a tracker interest rate to be applied to the mortgage loan account and they

were “told” by a manager of the Provider that “a tracker rate was not an option”. The

Complainants state that they were only offered fixed or variable interest rate options and

state that “the bank unfairly influenced [their] decision to sign the mortgage contract and

strategically created the false impression that [they] made a free choice between fixed,

variable and tracker rates”. The Complainants contend that they took the information they

were provided with by the Provider “in good faith and did not interpret the subtlety of

their language as an attempt to obscure facts”.

The Complainants are of the view that the wording of the Mortgage Loan Offer Letter

“implied that [they] were offered the option of a tracker rate but that [they] choose a