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Worth seeking legal advice or a waste of time?

  • 06-12-2018 3:32pm
    #1
    tempnam
    Registered Users Posts: 491 ✭✭


    Just to give a brief backgroud:

    Took out a mortgage in 2008. Initial application was made in Q1 2008 when tracker mortgages were still available. We didn't physically fill out the forms ourselves - this was done by the broker arranging the application, and he had us sign the end.... We requested to opt for the tracker rate while applying - but the broker told us that it's not available - you should go with 'X' fixed rate (this was all in conversation in his office - nothing to that effect in writing). We took his word for it (we were young and naive) and did as we were advised.

    ______________________________________________________________________
    Just to note that the section on the application form - where you select which rate you are applying for - was left completely blank. no rate was selected. (I received a copy of our application from the bank recently).
    ______________________________________________________________________

    So a letter of offer was then issued to us following our application, with a fixed rate listed, so we signed it and returned it as we had been instructed to do by our broker.

    It turns out now that the particular bank we are with were in fact still offering tracker rate mortgages when we applied for ours. I have contacted them and enquired about this and have basically been told "Sorry, you signed the letter of offer and that's what we gave you".

    While I understand this, my argument is that we had asked for a product at application stage, and were mis-informed that this product was not available to us (when it in fact was) so we followed the (incorrect) advice we had been given.

    The bank have washed their hands of it, and the broker is now long gone.

    So would it be worthwhile consulting a solicitor about this in order to follow it through? Would I get anywhere, or would it just be a case of "sorry, but you signed the forms."?


Comments

  • #2
    whippet
    Registered Users, Registered Users 2 Posts: 7,703 ✭✭✭whippet


    Who are you looking to take action against ?


  • #3
    banie01
    Registered Users, Registered Users 2 Posts: 16,933 ✭✭✭✭banie01


    tempnam wrote: »
    Just to give a brief backgroud:

    Took out a mortgage in 2008. Initial application was made in Q1 2008 when tracker mortgages were still available. We didn't physically fill out the forms ourselves - this was done by the broker arranging the application, and he had us sign the end.... We requested to opt for the tracker rate while applying - but the broker told us that it's not available - you should go with 'X' fixed rate (this was all in conversation in his office - nothing to that effect in writing). We took his word for it (we were young and naive) and did as we were advised.

    ______________________________________________________________________
    Just to note that the section on the application form - where you select which rate you are applying for - was left completely blank. no rate was selected. (I received a copy of our application from the bank recently).
    ______________________________________________________________________

    So a letter of offer was then issued to us following our application, with a fixed rate listed, so we signed it and returned it as we had been instructed to do by our broker.

    It turns out now that the particular bank we are with were in fact still offering tracker rate mortgages when we applied for ours. I have contacted them and enquired about this and have basically been told "Sorry, you signed the letter of offer and that's what we gave you".

    While I understand this, my argument is that we had asked for a product at application stage, and were mis-informed that this product was not available to us (when it in fact was) so we followed the (incorrect) advice we had been given.

    The bank have washed their hands of it, and the broker is now long gone.

    So would it be worthwhile consulting a solicitor about this in order to follow it through? Would I get anywhere, or would it just be a case of "sorry, but you signed the forms."?

    I do get that you asked for a tracker and didn't get it but establishing liability here could be quite difficult.
    A letter of offer would have been issued subsequent to your application and before loan drawdown.
    That letter would have outlined the mortgage rate, type and T&C's, you would have signed this and returned it to the bank and that offer letter would usually form the basis of the contract.

    So IMO you had scope to query and when presented with loan terms you accepted what was offered. Proving a fiduciary liability here would be quite difficult IMO.
    I'm not a lawyer and one of the more learned folk on here might come along and say I'm completely wrong.
    But while the offer made would be on the basis of your application form, your acceptance of the offered terms was via the return of the offer letter and barring a specified error on the letter of offer, I don't see where you have a winnable case, particularly if the broker has gone out of business?


  • #4
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,750 Admin ✭✭✭✭✭hullaballoo


    The bank didn't give incorrect advice at the time and it's unsurprising they have washed their hands of this issue.

    If the broker was still trading, I would recommend that you speak to a solicitor with a view to obtaining counsel's opinion on his liability to you for the incorrect advice.

    Only someone who is fully up to speed with all of the documentation and facts surrounding same would be able to advise you in relation to whether liability will attach to the broker.

    However, if I am reading the meaning of your post correctly, the broker is no longer in business. In any event, the Statute of Limitations would probably avail itself by way of defence to proceedings for negligence etc.


  • #5
    tempnam
    Registered Users Posts: 491 ✭✭tempnam


    The individual broker no longer works for the company. The company is a large multinational who have since closed down their 'retail branch network' but still trade in Ireland as well as internationally - in the insurance industry.


  • #6
    Victor
    Registered Users, Registered Users 2 Posts: 78,490 ✭✭✭✭Victor


    I can't see the bank having a duty to you, seeing as you had professional advice from the broker (and presumably a solicitor).

    You might have had a case against the broker. Coming chasing after 10 years is highly problematic, as the Statute of Limitations, 1957 kicks in, presumably after 6 years.
    hullaballoo wrote: »
    The bank didn't give incorrect advice at the time
    Is there evidence of this?


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  • #7
    Claw Hammer
    Registered Users, Registered Users 2 Posts: 6,295 ✭✭✭Claw Hammer


    Any case you have is against the broker and or his employer. Whe did you find out about the fact that trackers were still available?


  • #8
    tempnam
    Registered Users Posts: 491 ✭✭tempnam


    The information regarding when trackers stopped being offered was probably always there.

    The recent reporting of the 'Tracker Mortgage Scandal' is what prompted me to look into this further.


  • #9
    tempnam
    Registered Users Posts: 491 ✭✭tempnam


    banie01 wrote: »
    I do get that you asked for a tracker and didn't get it but establishing liability here could be quite difficult.
    A letter of offer would have been issued subsequent to your application and before loan drawdown.
    That letter would have outlined the mortgage rate, type and T&C's, you would have signed this and returned it to the bank and that offer letter would usually form the basis of the contract.

    So IMO you had scope to query and when presented with loan terms you accepted what was offered. Proving a fiduciary liability here would be quite difficult IMO.
    I'm not a lawyer and one of the more learned folk on here might come along and say I'm completely wrong.
    But while the offer made would be on the basis of your application form, your acceptance of the offered terms was via the return of the offer letter and barring a specified error on the letter of offer, I don't see where you have a winnable case, particularly if the broker has gone out of business?

    I understand what you're saying. My argument is that the letter of offer reflected exactly what the broker had (incorrectly) told us at application stage. He said we couldn't avail of a tracker and that we would have a fixed rate of X% - which is what was on the letter of offer. So that's what we signed and returned.

    We were acting on the incorrect advice we had been given.


  • #10
    banie01
    Registered Users, Registered Users 2 Posts: 16,933 ✭✭✭✭banie01


    tempnam wrote: »
    I understand what you're saying. My argument is that the letter of offer reflected exactly what the broker had (incorrectly) told us at application stage. He said we couldn't avail of a tracker and that we would have a fixed rate of X% - which is what was on the letter of offer. So that's what we signed and returned.

    We were acting on the incorrect advice we had been given.

    The broker may have been advised informally that your application would not have met criteria for tracker.
    It may have been a judgement call on his part based on his experience of similar applications, it may even have been a bad faith act to allow him receive a higher commission.

    Proving that it was a bad faith act, and that despite the statute of limitations period for action lapsing that you have a case for him to answer will be quite difficult.
    You will need to be able to establish and prove that he acted in bad faith.
    You will then need to to somehow convince a court to allow you undertake a statute barred action.


  • #11
    L1011
    Registered Users, Registered Users 2 Posts: 69,551 ✭✭✭✭L1011


    The tracker rates offered in the dying days were often so high that they equalled or exceeded SVR. Trackers are only a good think when the margin is low


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  • #12
    Marcusm
    Registered Users, Registered Users 2 Posts: 10,441 ✭✭✭✭Marcusm


    tempnam wrote: »
    I understand what you're saying. My argument is that the letter of offer reflected exactly what the broker had (incorrectly) told us at application stage. He said we couldn't avail of a tracker and that we would have a fixed rate of X% - which is what was on the letter of offer. So that's what we signed and returned.

    We were acting on the incorrect advice we had been given.

    The advice came from the broker not the bank. For all you know the broker may not even have inquired of the bank whether it would or could offer a tracker. Broker has responsibility to you, hard to see how the bank had as it looks like you never applied for the product you wanted. They gave you the one you applied for (or for which an application was submitted on your behalf).


  • #13
    Victor
    Registered Users, Registered Users 2 Posts: 78,490 ✭✭✭✭Victor


    banie01 wrote: »
    it may even have been a bad faith act to allow him receive a higher commission.
    This crossed my mind.

    It might be interesting to get a copy of the application form, as submitted.


  • #14
    Mr. Incognito
    Registered Users, Registered Users 2 Posts: 9,798 ✭✭✭Mr. Incognito


    I have been getting a LOT Of these queries in practice.

    People always have the same story.

    Oh If I had known about the tracker I would have taken it.

    You knew about the tracker. There were ads on TV about it. But you did what 90% of people do. You took the lowest rate.

    10 years later you hear something vaguely about a tracker mortgage scandal.

    This is where people who actually HAD trackers were unlawfully taken off them.

    If you want to take a case

    1. The burden of proof is on you.

    2. You have a signed contract with a particular rate treatment that you have kept stum about for 10 years.

    3. Do you have 100,000- 150,000 K handy to take it because thats what it will cost.

    The above is not legal advice and is not intended to be relied on but the short answer is I doubt it.


  • #15
    3DataModem
    Registered Users, Registered Users 2 Posts: 4,025 ✭✭✭3DataModem


    Mr. Incognito wrote: »
    This is where people who actually HAD trackers were unlawfully taken off them. .

    Also includes a small number of people who came off a fixed rate and were not offered a tracker, but "should" have been.


  • #16
    tempnam
    Registered Users Posts: 491 ✭✭tempnam


    Mr. Incognito wrote: »
    If you want to take a case

    1. The burden of proof is on you.

    How can you prove that a conversation took place?


  • #17
    banie01
    Registered Users, Registered Users 2 Posts: 16,933 ✭✭✭✭banie01


    tempnam wrote: »
    How can you prove that a conversation took place?

    That's the point Mr Incognito is making.
    Should you try to take a case you will need to prove those points to a court.
    The burden of proof is entirely on you.


  • #18
    Victor
    Registered Users, Registered Users 2 Posts: 78,490 ✭✭✭✭Victor


    tempnam wrote: »
    How can you prove that a conversation took place?

    Maybe you took notes, maybe you have a recording of a telephone conversation, maybe there are emails or letters. However, most 'proof' is down to witnesses giving testimony. Good testimony with contemporary documentary evidence is usually quite good.


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