Cork judge throws out cases taken by Bank of Ireland Mortgage Bank as "it is not a legal entity"

[Brendan Burgess]

Séamus Coffey reports on the proceeding in Court Circuit Cork today. A bad day for the banks all round. The Judge refused one lender a repossession although the borrower had consented to it. But the following is potentially more significant.

"#2 and #3 actually turned out to be the most interesting. These were applications for substitute service by Bank of Ireland. It seems the borrowers can be found to effect service on them so the bank had an application before the court to allow substitute service by ordinary post. Both applications were struck out by the judge with no order allowing substitute service. Why were they struck out? Because the motion was in the name of Bank of Ireland Mortgage Bank. The judge asked “what is the legal status of the plaintiff?” He was told it was a bank. He said a bank is not a legal status and struck out the applications. The judge said a plaintiff has to have a legal status and that you can’t bring an action before the court if you don’t have legal status. As Bank of Ireland Mortgage Bank was also the plaintiff on another case the issue was going to arise again."

I have checked in the CRO and indeed Bank of Ireland Mortgage Bank is a properly constituted legal entity. [broken link removed]

So these cases should not have been thrown out.

Brendan

 

[Sarenco]

Bizarre.

Bank of Ireland Mortgage Bank is an Irish incorporated company that happens to be authorised by the Central Bank. Even if it was an unregulated, unincorporated partnership or had some other legal or regulatory status, what would it have to do with the matter before the court?

At this stage, our justice system is starting to look less than fit for purpose.

And people wonder why mortgage rates are so high?

 

[Brendan Burgess]

Even if it was an unregulated, unincorporated partnership or had some other legal or regulatory status, what would it have to do with the matter before the court?

I think that the point the judge was making was that he did not recognise it as a legal entity. He expected to see Bank of Ireland Limited or Bank of Ireland plc. or the Governors and Company of Bank of Ireland. The unfortunate barrister for Bank of Ireland Mortgage Bank did not understand its status.

Brendan

 

[Mrs Vimes]

"What is the legal status of the plaintiff?"

"The plaintiff is an Irish company limited by shares/guarantee"

That barrister has dropped the ball! Judge was right to query the legal standing if it wasn't clear in the papers or clarified in court. Costs to the defendant, i assume?

Refusing a repossession which the borrower had consented to is bizarre indeed.

 

[Sarenco]

What does the corporate status of the lender have to do with anything? Would a judge make the same inquiry if Danske Bank A/S or AIB Mortgage Bank (or some other mortgagee that the judge had never heard of) made the application?

The corporate status of the applicant is simply not relevant to the matter under consideration - whether or not to make the repossession order in favour of the named mortgagee or its permitted assignee with the consent of the mortgagor.

If the mortgagee or its assignee had been dissolved (or even never existed) then nobody could enforce the order. Why should that be a concern of the judge?

Even if the judge's curiosity got the better of him why strike out the application? Why not simply adjourn the application until counsel for the lender was in a position to address the (completely irrelevant) question?

 

[Sophrosyne]

The Bank of Ireland Mortgage Bank was also mentioned in # 6.

“Again the judge asked “who are you?” and “is there a legal entity called Bank of Ireland Mortgage Bank?”

By this time the barrister had acquired a certificate of incorporation and articles of association and presented them to the judge.

The judge asked “does Bank of Ireland Mortgage Bank exist in law”?

The barrister replied that she was providing the certificate of incorporation for the company that shows its legal status.

She also presented articles of association but they were dismissed by the judge who said “you can write anything on them”.

The judge said that proceedings have to be correctly entitled.

The barrister said she presented the certificate of incorporation for the bank.

The judge said that she had presented a certificate of incorporation for Bank of Ireland Mortgage Bank Plc but that the proceedings were been undertaken by Bank of Ireland Mortgage Bank.

The judge said Bank of Ireland Mortgage Bank has no legal status; Bank of Ireland Mortgage Bank Plc has legal status.

The judge said the plaintiff was not properly described and the struck out the entire repossession application.

He concluded that “if banks want to sue people they must describe themselves properly”.

 

[rob oyle]

This is surreal... it sounds like some of the technicalities that people have claimed to get off drink driving convictions before, only in this case the technicality is brought up by, and only seems important to, the judge himself.
Justice delayed (in the case of consenting parties) is justice denied.

 

[Mrs Vimes]

What does the corporate status of the lender have to do with anything? Would a judge make the same enjuiry if Danske Bank A/S (or some other mortgagee that the judge has never heard of) made the application?

The identity of all parties has to be proven in every court application. In the case of a natural person this is done by stating "I, name, occupation of address aged 18 years and upwards make oath and say as follows...". In the case of an application on behalf of a company it is necessary to give the full registered name of the company, its full description and address. I assume since the judge raised the question that there was some deficiency in the foregoing in this case.

The corporate status of the applicant is simply not relevant to the matter under consideration - whether or not to made the repossession order in favour of the named mortgagee or its permitted assignee.

The identity of the applicant is fundamental to any application being made. If the corporate status of the applicant cannot be easily ascertained then its locus standi is also unclear and the application must fail.
been dissolved (or even never existed) then nobody could enforce the order. What should that be a concern of the judge?[/QUOTE]

Okay, you are suggesting that there is no harm in the judge granting an application to a non-existent person.

Even if the judge's curiosity got the better of him/her why strike out the application? Why not simply adjourn the application until counsel for the lender was in a position to address the (completely irrelevant) question?

I don't think the question is irrelevant at all. If the Barrister has failed to rectify the deficiencies in his application the application must be dismissed. He appears (from BB's account) to have been given the opportunity to do so by the judge.

EDIT: crossed with a few posts I haven't read yet - all comments based on BB's original report and Sarenco's first response.

 

[Mrs Vimes]

Have now read the other responses.

The bank appear to have made some basic errors in their applications.

Given that they have access to the finest legal eagles available, is that really acceptable?

If so, how many errors should the courts accept from people who do not have access to legal representation?

 

[Sarenco]

The corporate history of the applicant is completely irrelevant!

As it happens, Bank of Ireland Mortgage Bank was incorporated as Bank of Ireland Mortgage Bank plc on 21 May 2004 and re-registered as a public unlimited company, with the name Bank of Ireland Mortgage Bank, on 23 June 2004.

What does that have to do with the application? Companies often change their names or re-register as private, unlimited or public companies. It is still the same legal entity, with the same registration number, and the corporate history of any applicant is simply irrelevant.

Even if it was a different entity to which the loan originator assigned or transferred its interest, what would that have to do with an application for a possession order?

And why strike out a perfectly lawful application? Why not simply adjourn the matter pending clarification of whatever detail the judge considers appropriate?

If we want secured lending interest rates then we have to allow lenders to exercise their security interests. Otherwise mortgages are nothing more than personal, unsecured loans and will be priced accordingly.

 

[Sarenco]

Have now read the other responses.

The bank appear to have made some basic errors in their applications.

Given that they have access to the finest legal eagles available, is that really acceptable?

If so, how many errors should the courts accept from people who do not have access to legal representation?

Two obvious points:-

1. The mortgagor consented to the application. The court was not looking out for the "little guy" in dealing with this application; and

2. There is no suggestion in the report that the applicant was not clearly identified in the court documents or that there was any error on the face of the application.

This was clearly a solo run on the part of the judge.

 

[Mrs Vimes]

The judge didn't ask about corporate history, just corporate identity.

If I changed my name and then decided to sue a person who owed me money from last year, I fully expect to have to prove that I am still the same person, albeit with a different name, and am therefore still owed the money.

"why strike out a perfectly lawful application"? Why not put the onus on the applicant to perfect the application before it is made?

 

[Mrs Vimes]

Two obvious points:-

1. The mortgagor consented to the application. The court was not looking out for the "little guy" in dealing with this application; and

2. There is no suggestion in the report that the applicant was not clearly identified in the court documents or that there was any error on the face of the application.

This was clearly a solo run on the part of the judge.

BB mentioned a number of different applications on today's list - I think we are talking about different ones.

 

[Sarenco]

This is surreal... it sounds like some of the technicalities that people have claimed to get off drink driving convictions before, only in this case the technicality is brought up by, and only seems important to, the judge himself.
Justice delayed (in the case of consenting parties) is justice denied.

You have hit the nail on the head. This has absolutely nothing to do with the administration of justice.

 

[Sarenco]

BB mentioned a number of different applications on today's list - I think we are talking about different ones.

I am referring to the applications referenced in Brendan's original post (applications #2 and 3) but the same comments are relevant to the application referenced in Sophrsyne's post (application #6).

 

[Sophrosyne]

Have now read the other responses.

The bank appear to have made some basic errors in their applications.

That was the problem.

 

[Sarenco]

"why strike out a perfectly lawful application"? Why not put the onus on the applicant to perfect the application before it is made?

There is no suggestion from the report that there was anything incorrect or "imperfect" about the application.

The application appears to have been brought, on consent, by the registered holder of charge. The fact that the barrister was apparently unaware of the corporate history of the applicant is not a good ground for striking out the pplcation.

Striking out a perfectly valid application on these grounds simply incurs unnecessary costs. Costs that ultimately have to be borne by other borrowers.

 

[Sarenco]

That was the problem.

Ok, tell us what errors, basic or otherwise, the mortgagee made in its application.

There is nothing in the report to suggest that there were any errors in the application.

 

[Sophrosyne]

"The judge said Bank of Ireland Mortgage Bank has no legal status; Bank of Ireland Mortgage Bank Plc has legal status.

The judge said the plaintiff was not properly described and the struck out the entire repossession application.

He concluded that “if banks want to sue people they must describe themselves properly”.

 

[Sarenco]

The holder of the mortgage was incorporated as Bank of Ireland Mortgage Bank plc. It subsequently re-registered as an unlimited company and therefore changed its name to Bank of Ireland Mortgage Bank.

It was called Bank of Ireland Mortgage Bank when the mortgage was registered in its name. The consensual application for a possession order pursuant to this mortgage was therefore made in the correct name.

The judge was very obviously factually incorrect in suggesting that the applicant had no legal status and there is absolutely nothing in the report to suggest that there was any error in the application.

Unfortunately the lender's barrister was unaware of the lender's corporate history. This should have been irrelevant and we will all have to pay for these judicial ego trips.