If you are facing a court case from Tanager...

Brendan Burgess

Brendan Burgess

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Today, Justice Noonan gave a decision which affects most Tanager cases in the Tanager vs. Ralf Kane case.

The background
Bank of Scotland Ireland sold their mortgage book to Bank of Scotland plc
Banks of Scotland plc sold the mortgages to Tanager.

In some case, this was all done properly. Banks of Scotland plc put their name on the folio. If Bank of Scotland plc appears on the folio, you are not affected by Justice Noonan's decision, and Tanager is free to seek possession.

In many cases, Bank of Scotland plc was not put on the portfolio.

Ralf Kane has argued that this means that the transfer was not done properly and so therefore they can't seek an order for possession. Tanager has argued that it is not relevant.

As hundreds of repossession cases are affected by this, it is a matter of public importance, so Justice Noonan has referred it to the Court of Appeal. They will make the final and binding decision.

It will take about a year for the Court of Appeal to make a decision.

So if you are affected by this, then Tanager will seek a long adjournment the next time you are due in court.
 
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This does not mean that you should stop paying your mortgage. It means that you have another year in which to try to get back on track, so that when the court case is decided, you will be in a better position to defend yourself.

I would probably go further and say that Tanager might well be more open these days to restructuring your mortgage as it's gradually dawning on them how difficult it is for them to enforce their mortgage. So now might be a good time to ask them again for a restructure.

Brendan
 
There is a fuller report in today's Irish Times

I had not realised that Justice Noonan had issued an interim judgement, although I find it hard to follow. The net effect though is that he is asking the Court of Appeal to rule on it.

https://www.irishtimes.com/news/cri...-on-key-issue-in-repossession-order-1.3300972

Based on a 2015 Supreme Court decision (Kavanagh v McLaughlin), BOS was entitled to exercise all its contractual rights under the charge but not any statutory right under the Registration of Titles Act 1964 “unless and until it became registered as owner of the charge”.


BOS was therefore not entitled to rely on the power provided for under the 1964 Act to transfer a registered charge as it was not registered as owner, he said.


BOS purported to transfer this charge to the fund by using a Land Registry form which appears to relate to transfers by the registered owner or transfers by the person entitled to be registered as owner under Section 90 of the 1964 Act but neither category applied to BOS. The issue was whether BOS was entitled to do that without first itself becoming registered.


Because the transfer by BOS of the charge to the fund, and the latter’s registration of the charge, was all part of a “perhaps unprecedented” process affecting Mr Kane’s interests, but in which he had no right to participate, issues arose whether Mr Kane was precluded from invoking the court’s power to recify the register in proceedings where his family home “is at stake”.
 
Hi Brendan, this is probably a silly question but how do I find out if Bank of Scotland plc was put on the portfolio?
 
If you have your folio number log into landdirect.ie agree to T&Cs click the button "Proceed as guest" and a map with various ways to ID your Folio .You can zoom into ID your property and then add to basket.You then have options to get your folio documents. AFAIK the copy folio for €5 will arrive by email by return showing you all details of your folio docs and should show BOS details.
 
Or if Tanager has begun proceedings against you, a copy of the folio will be in the papers served on you.

Brendan
 
I have checked the folio and it was transferred to Tanager in 2014 by Bank of Scotland (Ireland) Limited. I am due back to the Court in Dublin in April. Should I say to the Registrar then that I would like to await the outcome of the Kane case as this is crucial to my case?
 
Hi Nel

It's not clear from what you have said whether you are affected by the case.

The best defence is to pay your mortgage and try to come to an arrangement with Tanager.

There is a risk in relying on legal defences in that the Registrar can't rule on legal issues and may fast-track it to the Judge who might well make a ruling on it.

I suggest that you start a separate thread with all this information so that you can get meaningful suggestions:
Information required for mortgage arrears and negative equity questions
Brendan
 
Hi Brendan thanks for that. I think I am effected in that like Kane, my mortgage was transferred by BOS Ireland to BOS PLC in 2014, then it was BOS Ireland that transferred it to Tanager in 2014. Therefore it wasn't transferred by BOS PLC which is what Kane is arguing. I have been paying in full for a year now and have some savings to pay towards arrears (maybe 5,000) and I would like to pay 300 also extra a month. Problem is they won't recapitalise and they want full payment of arrears (66,000) now. I have been working with a Mabs advisor for a couple of years and he to is frustrated that they won't recapitalise because he can see now that I am sustainable for the full payments along with some extra. I don't want it to go into the Judge as I know it works a lot faster in there and I want to keep my family home. How can my case progress with the Registrar if the Supreme Court have not given their response to the question regarding the transfer by BOS Ireland or BOS PLC, which directly effects me?
 
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