Lenders who change name must register that name before seeking repossession

Brendan Burgess

Brendan Burgess

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This came up a few times in the Registrar's List in Wicklow Court yesterday.

Irish Life and Permanent sought an order for possession and everything was in order, but they had not registered Permanent TSB as the Registered owner of the charge in the Land Registry.

Apparently, the Supreme Court has ordered that they they must do so before taking any such actions.


So the cases involving the following lenders where it was a Land Registry case, were adjourned until the change of ownership could be registered.

Irish Life and Permanent became permanent tsb
First Active became Ulster Bank
BAnk of Scotland ? Not sure if they are affected

Dillon Eustace have a good briefing on it, from which I have extracted the following:

upload_2015-7-14_17-24-44.png
 
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Brendan,


Bank of Scotland on the face of it , seem to be in real trouble in relation to " perfection of title " issues. As stated by Justice Laffoy above, the cross border merger of BOSI to BOS did not specifically dis-apply this mandatory obligation which it ought to have done. The P.R.A.I. have attempted to retrospectively solve the legal issues by issuing legal notice 2/2014.



Bank of Scotland (Ireland) Limited – Legal Office Notice No. 2 of 2014
By Deed of Transfer dated 1st July 2004 made between The Governor and Company of the Bank of Scotland (‘GCBS’) and Bank of Scotland (Ireland) Limited (‘BOSI’), GCBS assigned its portfolio of domestic Mortgages to BOSI. The Deed is filed in Instrument No. D2005PS002367T together with a schedule giving details of all the mortgagors, numbering approx. 14,000, but without folio details.

On the 17th September 2007 GCBS changed its name to Bank of Scotland plc (‘BOS’).

Pursuant to the European Communities (Cross Border Mergers) Regulations 2008, BOSI merged with BOS on the 31st December 2010, at 23.59 hours and all the assets of BOSI did vest in BOS.

BOSI was thereby dissolved.

Henceforth the following practices will apply:

  1. Discharges by BOS of BOSI and GCBS charges will be acted upon and the relevant charge cancelled, as if the discharge was by BOSI or GCBS.
  2. Charges dated on or after 1st January 2011 must be in the name of BOS.
  3. Charges prior to 1st January 2011, in the name of BOSI, or prior to 17th September 2007, in the name of GCBS, may be registered in the name of BOS.
  4. On application by BOS in any particular case, it may be registered in substitution for BOSI or GCBS as owner of individual charges, on payment of a fee of €40.
  5. In any case where BOS intend to realise their security, in respect of a charge registered in the name of BOSI or GCBS, either by receiver’s sale or by exercising the power of sale of a mortgagee in possession, it should apply for registration as owner of such charge prior to lodgement of the transfer on sale of the property in realisation of the security. BOS must be registered as owner of a charge to exercise the powers of enforcing such charge.


Legal Office Notice 2 of 2005 and Legal Office Notice 1 of 2011 are now rescinded.


As we both know, this action of the PRAI is open to legal challenge. The fact that BOSI, ceased to exist after the merger, further complicates matters.

These "perfection issues" have gained real legal traction in the United States and are starting to do likewise in Europe.
 
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Asphyxia said:
Brendan,


Bank of Scotland on the face of it , seem to be in real trouble in relation to " perfection of title " issues. As stated by Justice Laffoy above, the cross border merger of BOSI to BOS did not specifically dis-apply this mandatory obligation which it ought to have done. The P.R.A.I. have attempted to retrospectively solve the legal issues by issuing legal notice 2/2014.



Bank of Scotland (Ireland) Limited – Legal Office Notice No. 2 of 2014
By Deed of Transfer dated 1st July 2004 made between The Governor and Company of the Bank of Scotland (‘GCBS’) and Bank of Scotland (Ireland) Limited (‘BOSI’), GCBS assigned its portfolio of domestic Mortgages to BOSI. The Deed is filed in Instrument No. D2005PS002367T together with a schedule giving details of all the mortgagors, numbering approx. 14,000, but without folio details.

On the 17th September 2007 GCBS changed its name to Bank of Scotland plc (‘BOS’).

Pursuant to the European Communities (Cross Border Mergers) Regulations 2008, BOSI merged with BOS on the 31st December 2010, at 23.59 hours and all the assets of BOSI did vest in BOS.

BOSI was thereby dissolved.

Henceforth the following practices will apply:

  1. Discharges by BOS of BOSI and GCBS charges will be acted upon and the relevant charge cancelled, as if the discharge was by BOSI or GCBS.
  2. Charges dated on or after 1st January 2011 must be in the name of BOS.
  3. Charges prior to 1st January 2011, in the name of BOSI, or prior to 17th September 2007, in the name of GCBS, may be registered in the name of BOS.
  4. On application by BOS in any particular case, it may be registered in substitution for BOSI or GCBS as owner of individual charges, on payment of a fee of €40.
  5. In any case where BOS intend to realise their security, in respect of a charge registered in the name of BOSI or GCBS, either by receiver’s sale or by exercising the power of sale of a mortgagee in possession, it should apply for registration as owner of such charge prior to lodgement of the transfer on sale of the property in realisation of the security. BOS must be registered as owner of a charge to exercise the powers of enforcing such charge.


Legal Office Notice 2 of 2005 and Legal Office Notice 1 of 2011 are now rescinded.


As we both know, this action of the PRAI is open to legal challenge. The fact that BOSI, ceased to exist after the merger, further complicates matters.

These "perfection issues" have gained real legal traction in the United States and are starting to do likewise in Europe.
Click to expand...

Hi asphyxia
Point No. 5 of above am I right in understanding that before bos plc can obtain possession order they must be registered as the charge? My folio does not have them registered as charge only BOS Ireland then to Tanager in 2014? Tanager then had the possession order transferred ex parte? I'm your opinion is this legal?
 
Hi las

You should take legal advice from your solicitor on your specific circumstances rather than rely on anonymous generalised advice on askaboutmoney
 
Brendan Burgess said:
Hi las

You should take legal advice from your solicitor on your specific circumstances rather than rely on anonymous generalised advice on askaboutmoney
Click to expand...

Thanks for the advice Brendan. I was a lay litigant and lost my case in the High Court today. It appears that BOS PLC do NOT have to be registered as charge on the folio to enforce repossession.
 
Hi Las

What was your actual case? Could you summarise the arguments and the Judge's ruling for the benefit of others.

I am a great fan of lay litigation where appropriate but I would never recommend a lay litigant defending a High Court case on a point of law.

Brendan
 
las66 said:
Thanks for the advice Brendan. I was a lay litigant and lost my case in the High Court today. It appears that BOS PLC do NOT have to be registered as charge on the folio to enforce repossession.
Click to expand...

Is this not contradicting what BB states happens in Wicklow?
 
las66 said:
Thanks for the advice Brendan. I was a lay litigant and lost my case in the High Court today. It appears that BOS PLC do NOT have to be registered as charge on the folio to enforce repossession.
Click to expand...
Las66

I am very interested in this thread and indeed your case, if at all possible, can you tell me the date on the possession order that the County Registrar substituted Tanager limited for Bank of Scotland ?
 
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Hi all
My argument was that the possession order was granted in the name of bos plc who sold my mortgage into tanager. I put it to the judge that only bos Ireland were on my folio and then to tanager in 2014. Bos plc were never registered as the charge on our folio. I was under the impression they had to be in order to realise any security on the property. Tanager had the possession order transferred to them ex parte in the circuit court in October 2014. We were not notified.
That is it in a nutshell.
Thanks for the interest.
Kind regards
 
Las 66

It appears to me that the High Court erred in it's ruling as it did not take cognizance of the Supreme Court ruling ( March 2015 ) Justice Laffoy in the case of Tom Kavanagh and BOS V Patrick McLoughlin. Her judgment is of particular importance where enforcement proceedings are brought or anticipated in respect of a property comprising registered land and where the party enforcing the security wishes to avail of the rights conferred by s. 62 of the 1964 Act. In circumstances where the provisions on foot of which assets or security were transferred do not expressly relieve the statutory obligation under the 1964 Act to become the registered owner of the charge, then it is necessary that the entity holding the debt is registered as the charge holder on the relevant folio if that charge holder wishes to have the benefit of the powers to a charge holder under the 1964 Act. Those powers to a charge holder include the power of sale, power to summarily apply for possession and the power to ‘overreach’ subsequent judgment mortgages.
 
HelpingHand said:
Las 66

It appears to me that the High Court erred in it's ruling as it did not take cognizance of the Supreme Court ruling ( March 2015 ) Justice Laffoy in the case of Tom Kavanagh and BOS V Patrick McLoughlin. Her judgment is of particular importance where enforcement proceedings are brought or anticipated in respect of a property comprising registered land and where the party enforcing the security wishes to avail of the rights conferred by s. 62 of the 1964 Act. In circumstances where the provisions on foot of which assets or security were transferred do not expressly relieve the statutory obligation under the 1964 Act to become the registered owner of the charge, then it is necessary that the entity holding the debt is registered as the charge holder on the relevant folio if that charge holder wishes to have the benefit of the powers to a charge holder under the 1964 Act. Those powers to a charge holder include the power of sale, power to summarily apply for possession and the power to ‘overreach’ subsequent judgment mortgages.
Click to expand...
 
[QUOTE="las66, post: 1452508,

Hi Helping Hand
I understand what you are saying and even though I did mention the reg of title act to the judge he still ruled in Tanagers favour. Not anymore I can do at this stage I guess. I may have won it I were not a lay litigant.
 
las66 said:
Hi all
My argument was that the possession order was granted in the name of bos plc who sold my mortgage into tanager. I put it to the judge that only bos Ireland were on my folio and then to tanager in 2014. Bos plc were never registered as the charge on our folio. I was under the impression they had to be in order to realise any security on the property. Tanager had the possession order transferred to them ex parte in the circuit court in October 2014. We were not notified.
That is it in a nutshell.
Thanks for the interest.
Kind regards
Click to expand...
Hi Lass. what did the judge say?
 
las66 said:
[QUOTE="las66, post: 1452508,

Hi Helping Hand
I understand what you are saying and even though I did mention the reg of title act to the judge he still ruled in Tanagers favour. Not anymore I can do at this stage I guess. I may have won it I were not a lay litigant.
Click to expand...

las66, I am in agreement with the poster Helping Hand in relation to your situation. It apears to me that the High Court Judge erred in law in it's judgment and did not take account of what the Supreme Court had stated in the McLoughlin v BOS case.


Basically, Justice Laffoy's Supreme Court judgment, with regard to the effect of non compliance with the Registration of Titles Act, with regard to the McLoughlin case, stated that notwithstanding the manner in which the 2006 Charge became vested in BOS by virtue of the 2008 cross–border merger regulations, in accordance with the provisions of s. 62 of the 1964 Act if BOS wished to avail of the statutory rights conferred on charge holders by s. 62 of the 1964 Act in order to enforce the 2006 Charge BOS must comply with the requirement that it be registered as owner of the charge on the folio.

Laffoy J noted that in other pieces of legislation the Oireachtas had provided for exemptions to compliance with s. 62 of the 1964 Act and referred to acts including the Central Bank Act 1971, the Trustee Savings Bank Act 1989 and the NAMA Act 2009. In the BOSI to BOS transfer by way of cross-border merger it was significant that the 2008 cross–border merger regulations did not specifically dis-apply this mandatory obligation.

Laffoy J’s comments were made obiter but will nonetheless have significant authoritative value on this particular issue. Her judgment is of particular importance where enforcement proceedings are brought or anticipated in respect of a property comprising registered land and where the party enforcing the security wishes to avail of the rights conferred by s. 62 of the 1964 Act. In circumstances where the provisions on foot of which assets or security were transferred do not expressly relieve the statutory obligation under the 1964 Act to become the registered owner of the charge, then it is necessary that the entity holding the debt is registered as the charge holder on the relevant folio if that charge holder wishes to have the benefit of the powers to a charge holder under the 1964 Act. Those powers to a charge holder include the power of sale, power to summarily apply for possession and the power to ‘overreach’ subsequent judgment mortgages.

In Las66 case, it appears to me, that BOS took enforcement action with regard to the charge when they were NOT registered as owners of the charge and indeed successfully obtained a possession order from the Circuit Court ( first error ). Then BOS sold this charge to a venture capital company called Tanager ltd whilst, at the time of such sale, BOS were still not the registered owner of the charge ( second error ). Tanager Ltd then had the invalid possession order amended to their benefit, by substitution ex parte via the Circuit court ( third error ). This case is quite extraordinary and comprises of a litany of compounding errors, which ultimately may result in a person losing their home. My advice to Las66 is to seek an immediate appeal. You are a lay litigant and the court must show some flexibility in relation to the lodging of the appeal papers, as you are currently outside such statutory time limit. However, given the grave consequences of failing to lodge an appeal, it is my belief that the Appeal Court will acquiesce to the lodging of the appeal papers, late as they may be, and allow the appeal. Too date, you have been done a terrible injustice by the courts.
 
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Mr Holmes said:
las66, I am in agreement with the poster Helping Hand in relation to your situation. It apears to me that the High Court Judge erred in law in it's judgment and did not take account of what the Supreme Court had stated in the McLoughlin v BOS case.


Basically, Justice Laffoy's Supreme Court judgment, with regard to the effect of non compliance with the Registration of Titles Act, with regard to the McLoughlin case, stated that notwithstanding the manner in which the 2006 Charge became vested in BOS by virtue of the 2008 cross–border merger regulations, in accordance with the provisions of s. 62 of the 1964 Act if BOS wished to avail of the statutory rights conferred on charge holders by s. 62 of the 1964 Act in order to enforce the 2006 Charge BOS must comply with the requirement that it be registered as owner of the charge on the folio.

Laffoy J noted that in other pieces of legislation the Oireachtas had provided for exemptions to compliance with s. 62 of the 1964 Act and referred to acts including the Central Bank Act 1971, the Trustee Savings Bank Act 1989 and the NAMA Act 2009. In the BOSI to BOS transfer by way of cross-border merger it was significant that the 2008 cross–border merger regulations did not specifically dis-apply this mandatory obligation.

Laffoy J’s comments were made obiter but will nonetheless have significant authoritative value on this particular issue. Her judgment is of particular importance where enforcement proceedings are brought or anticipated in respect of a property comprising registered land and where the party enforcing the security wishes to avail of the rights conferred by s. 62 of the 1964 Act. In circumstances where the provisions on foot of which assets or security were transferred do not expressly relieve the statutory obligation under the 1964 Act to become the registered owner of the charge, then it is necessary that the entity holding the debt is registered as the charge holder on the relevant folio if that charge holder wishes to have the benefit of the powers to a charge holder under the 1964 Act. Those powers to a charge holder include the power of sale, power to summarily apply for possession and the power to ‘overreach’ subsequent judgment mortgages.

In Las66 case, it appears to me, that BOS took enforcement action with regard to the charge when they were NOT registered as owners of the charge and indeed successfully obtained a possession order from the Circuit Court ( first error ). Then BOS sold this charge to a venture capital company called Tanager ltd whilst, at the time of such sale, BOS were still not the registered owner of the charge ( second error ). Tanager Ltd then had the invalid possession order amended to their benefit, by substitution ex parte via the Circuit court ( third error ). This case is quite extraordinary and comprises of a litany of compounding errors, which ultimately may result in a person losing their home. My advice to Las66 is to seek an immediate appeal. You are a lay litigant and the court must show some flexibility in relation to the lodging of the appeal papers, as you are currently outside such statutory time limit. However, given the grave consequences of failing to lodge an appeal, it is my belief that the Appeal Court will acquiesce to the lodging of the appeal papers, late as they may be, and allow the appeal. Too date, you have been done a terrible injustice by the courts.
Click to expand...
Thanks Mr Holmes
If you have time I can go onto private conversation mode to let you know more.
 
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