How the lenders got on in the Dublin Country Registrar's Court today

Brendan Burgess

Brendan Burgess

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Just back from the court and I thought it might be useful to document the cases where the bank was unable to make progress and where the borrower was able to frustrate the bank with minimal effort.

Summary of outcomes

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Profile of order granted in absence of borrower:

No show by borrower. No payments. Original mortgage 2006 for €251k. Balance now €316k. Arrears of €94k (82 months)

Reasons for refusing orders

  • 7th time in list – Case profiled here
  • Parties abroad not properly served
  • €61k arrears but borrowers claim to be paying now
  • Plaintiff entered appearance yesterday
  • Last payment on one account in 2015, and other in 2010. Borrower has a compensation claim which would help clear the arrears.
  • Paying €2,000 a month –arrears €45k (This was the only one which struck me where an order should not have been sought or granted- Brendan)
  • Borrower thought he had an agreement to pay €12.50 a week with €105k arrears - size of mortgage not disclosed
  • Counsel hadn’t original mortgage deed (Lender's incompetence)
  • Borrower present. Hadn’t filed affidavit. No payment since 2013
  • €73k arrears, but has been paying €840 per month for 18 months.

Reasons lenders gave for adjourning cases included
  • Notified by borrower this morning that an adult child of the borrowers was living in the house, so they had to serve notice of the proceedings on them.
  • Lender changed solicitor
  • Loan sold to Mars Capital - Delays in Property Registration Authority in putting Mars' name on portfolio
  • Affected by Finnegan Judgement - waiting for High Court clarification
  • Borrowers living in Qatar - haven't been able to serve the proceedings on them.
  • Borrower has just appointed a PIP
  • Borrower paying most of what he should be paying
  • Bank wanted it to go to Judge's List (not sure why.) No affidavit of of compliance with CCMA or up to date affidavit on state of account
  • Test period ended recently. Wants time to assess whether an extension can be granted
  • Affidavit received from borrower yesterday
  • One borrower has indicated she will consent to order. Trying to contact joint borrower to see if he consents
  • Wants more time to assess the case
  • Borrower paying in full, but no plan to clear very large arrears
  • 5th time in court. Split mortgage offered two days ago. Waiting for borrower to respond
 
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Profile of an order refused

The lender applied for an order in this case saying that they would accept a 12 month stay on it.

This civil bill was issued in 2013. (She would have gone through the MARP before that.)
The Registrar complained that the lender was clogging up the court as this was the 7th appearance.
2/2014 - Adjourned - reason not given. Usually a problem with service
5/2014 - Adjourned as first time properly in court
6/2014 - General Adjournment. ( A general adjournment is sought by the lender when an agreement has been reached. It only comes back into court if the borrower breaches the agreement. This is the first time I have noticed a General Adjournment coming back into court.)
5/2015 Back in court and got an adjournment. So the agreement must have been breached
12/2015 - My notes from this appearance:
"6th time on the list. Peremptory the last time. [this means that the Registrar is telling the bank to proceed or strike it out] On the first call,the bank wanted to adjourn because the borrower asked for an adjournment. The Registrar put it to 2nd call. On the second call, the bank said that they now wanted to proceed. A PIP appeared with the borrower and tried to speak. The Registrar told him he had no right of audience.

Registrar: This is the 6th time on the list. Proceedings were issued in February 2014. The borrower sent in an SFS in July. AIB asked for further information in October. “What took you until October?”. Borrower: We sent in a proposal to sell the house but got no response.

“If an defendant wants and adjournment, they must file an affidavit”

Today
Borrower engaged with the bank in January.
Lender offered ARA in April
Borrower says she has been paying since May. Couldn't pay April as the offer arrived too late.

Registrar: Adjourned to January as "the borrower obviously wants to pay"

My assessment of this case

This shows how it's virtually impossible for a lender to get an order if the borrower shows up in court and makes occasional payments.

If someone has gone back on a General Adjournment, the next case should result in an automatic order, unless the circumstances are exceptional.

In all cases, where the Registrar refuses and order, the full repayment history should be reviewed. In particular the last year.

A borrower should not be able to get an adjournment because they made one payment last month.

The Registrar should not accept the excuse "I couldn't pay because I was waiting to hear from the lender"

Paperwork takes a long time. It is not an excuse for paying nothing. The borrower should be paying something every month. If the borrower has not paid, say, 3% of the outstanding balance over the last 12 months, then an order should be granted.

Brendan
 
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Hi Brendan

Do borrowers have to file an appearance in respect of each encounter with the registrar? Or does the original appearance carry forward?

Thanks.

Gordon
 
Great stuff Brendan, a real public service.

Would it be right to read from this that borrowers who do not show up or who cannot be served, do at least as well if not better than borrowers who do put in an appearance.
 
Gordon Gekko said:
Do borrowers have to file an appearance in respect of each encounter with the registrar? Or does the original appearance carry forward?
Click to expand...

The borrowers rarely file an appearance.

Technically, if they want to apply for an adjournment , they must file an affidavit explaining why. I have never seen them asked for it.

Brendan
 
cremeegg said:
Would it be right to read from this that borrowers who do not show up or who cannot be served, do at least as well if not better than borrowers who do put in an appearance.
Click to expand...

If a borrower can't be served, it's very difficult for the lender to progress the case. They must apply for substitute service e.g. posting a note of the case on the door of the property.

People who show up get longer adjournments.

Séamus Coffey, Karl Deeter and I have seen only 2 orders granted against people who showed up.

So I think it's always better to show up.

Brendan
 
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