In routine court cases, you should avoid using solicitors and barristers

Discussion in 'Mortgage arrears & negative equity case studies' started by Brendan Burgess, Mar 15, 2017.

  1. Brendan Burgess

    Brendan Burgess Founder

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    Last edited: Mar 15, 2017
    I have watched hundreds of repossession cases in the Registrar's Courts and I have really been really shocked by the disorganisation and incompetence of the legal teams. (The exception is Bank of Ireland. They have fewer cases than the other lenders, but when they do seek an order for possession, their files seem to be in order, and they succeed more often than not.)

    In general, where borrowers show up in the court, they have represented themselves very well. They are on top of the facts. The Registrar explains things to them. Where the borrower appears genuine, the Registrar is very polite and will almost always bend over backwards to help the borrower. If the borrower is aggressive or disrespectful or engages in phony legal arguments, the Registrar is less patient.

    Borrowers are often nervous and sometimes don't express themselves very clearly. But, in a way, that seems to help them. The Registrar realises that they are vulnerable and makes allowances accordingly.

    But the legal teams for the banks are so bad that they often don't get orders when they are merited, because they have made mistakes along the way. It seems a pointless expense for borrowers to pay solicitors.



    Here are some examples of what I have witnessed

    These are just three examples. But go down to the repossession court any day, and see for yourself. It's often farcical.

    Example 1

    A solicitor made a half-hearted appeal for the order not to be granted. It was an uphill case as there was no defence at all. The borrower had made promises but had made no payments. The Registrar decided to grant an order. After this decision is made, the barrister for the lender must take the Registrar through the paperwork, and often there is a problem and the order is not granted. While the barrister for the bank and the Registrar were going through the paperwork, the solicitor for the borrower was texting and paying no attention to the proceedings. When the order was officially granted, the Registrar looked to the solicitor for the borrower and said that she proposed giving a 3 month stay. The solicitor was still on the phone and did not hear the Registrar.

    I am sure that if the borrower had been present, they would have got a much longer stay of execution.

    Example 2 Lender sends an affidavit to the borrower the day before the court case. The Judge has no file.

    I have documented another case here where the lender probably would have got an order for possession if they had been organised enough.

    Example 3 Landlord vs. tenant

    This was a case in the Dublin Circuit Court yesterday, which prompted me to write this post.

    The barrister for the landlord set out the case very well.
    In August 2015, there was €4,802 of rent arrears.
    They had a hearing in the PRTB on 23 October 2015.
    In November 2015, the PRTB issued its adjudication in favour of the landlord.
    • The arrears were correct and due
    • The tenant should vacate the property
    • The tenant should continue to pay the rent of €1,325 per month until he vacated it.
    The landlord had filed an updated affidavit in January 2017 saying that the arrears had not been paid, nor had any rent been paid since, so now a further €15,900 was outstanding.

    The tenant was in court,representing himself. I wondered why he bothered. This was a clear-cut case. A landlord finding it impossible to get rid of difficult tenant refusing to pay the rent. What could he possibly have to say?

    The Judge was surprisingly polite with the tenant. I would not have been. She summarised what the Barrister had said very well and asked if he had anything to say.

    He said that he had withheld the €4,000 rent because there were repairs outstanding.The Registrar told him that this was not an excuse to withhold rent. He could have gone to the PRTB himself with a complaint.

    But then the tenant said that he was not well. That he and his daughter were ill. But he had paid "every penny that was due". He had his bank statements with him to prove it. The barrister for the landlord tried to intervene, but the Judge told the barrister to let the tenant speak.

    Then the judge turned to the barrister and asked him this was true.

    And the barrister said "I was going to flag it up that payments had been made."
    Judge: But you did not flag it up. You concluded without saying anything.
    Barrister: I was going to open Exhibits 5 and 6.
    Judge reads out the affidavit "The respondent has failed to pay any arrears and has failed to pay the rent and a further €15,900 is due. " This was a sword affidavit and it's not true.
    Barrister: All I can do is apologise . I was naive.
    Judge: "Naive? What is in Exhibit 5 and 6?". Reads them to herself. "Where do these affidavits refer to the rent having been paid. Are you attended by a solicitor?"
    Barrister: "Yes". The solicitor was there, but didn't get involved.
    Judge: "How was this affidavit drafted and sworn . It was, "inaccurate" , that is the kindest word I can use. What if the tenant had not shown up in court today?"
    Barrister: "I was naive"
    Judge: "Naive???. I am striking out these proceedings. "
    To the tenant: They will probably reissue the proceedings. They might not try to file inaccurate affidavits, but do make sure you show up in court."

    Comment
    I can't figure out this at all. I suppose a landlord might make a false affidavit in the hope of getting an order for eviction. But the solicitor should have stopped her. And even if the solicitor had not stopped her, the barrister should not have proceeded on the basis of an affidavit he knew to be incorrect.

    I wonder were they just assuming that the tenant would not appear in court?

    I was shocked, but the Judge also seemed to be shocked.

    The landlord was not in court, so she won't know what went on, except that she will get a big bill for legal costs and will still have a tenant she doesn't want.
     
    Last edited: Mar 15, 2017
    aidamcg, SirMille, mtk and 1 other person like this.
  2. mtk

    mtk Frequent Poster

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    amazing
     
  3. newtothis

    newtothis Frequent Poster

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    Let me get this straight: the judge says this, and there's no sanction for anyone involved? I didn't think my opinion of the legal profession could get much lower, but this is something else....

    By the way, I don't thinkthat it will be a surprise to anyone involved in mortgage arrears cases just how incompetent lenders are in dealing with mortgages in trouble. It's a major issue for the central bank guidelines: plenty of sanctions for borrowers who don't engage and co-operate, but absolutely silent on what happens when lenders don't engage.
     
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  4. noproblem

    noproblem Frequent Poster

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    Brendan,
    I can imagine instances where what you've mentioned above may now be looked over again where tenants didn't attend court. Have to praise the judge for being on the ball, some have been known to nod off but still deliver a snoozy judgement.
     
  5. Brendan Burgess

    Brendan Burgess Founder

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    The whole thing was surreal. There certainly have been cases where the judge refers a perjurer to the DPP.

    The landlord swore an affidavit which was materially incorrect.
    The solicitor did nothing about it.
    The barrister presented his case knowing it was incorrect.

    The last bit is the oddest. The barrister knew that the tenant was in court, so how could he get away with it?

    Brendan
     
  6. Brendan Burgess

    Brendan Burgess Founder

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    In my experience in courts, the judges are very much on top of things. They can summarise a case and cut to the chase very quickly. And it must be very frustrating for them given the disorganisation and sloppiness of the solicitors and barristers.

    Brendan
     
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  7. ZigaZaga

    ZigaZaga New Member

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    I was helping a friend at a hearing last year - she was too scared to speak - I went with her and ended up talking to the the registrar. Said I was her 'advocate' and was allowed to talk... I knew more about her situation, and delivered it way better, than the barrister/solicitor representing the bank. I had all the documents to hand. The registrar was lovely, asked if the bank responded to xxx's email/letters (nope...), and asked what the 'defendant's current situation' was: she was paying 'slightly more than the interest, but had no job at present, on social welfare' etc. The only reason bank wanted to proceed was the fact the equity in the house exceeded the value of the mortgage. I did the usual 'If they get their order, this is one more homeless family for the state and the taxpayers...' blah blah.

    The registrar was nodding and agreeing to everything I was saying and basically said: "If xx paying the interest and a bit... what more do you want? I'm striking it out!" we couldn't believe it... We walked into that court room, accepting defeat, and making plans about moving her stuff then ended up walking out feeling 10 feet tall!

    There were people in there owing way more and paying NOTHING (unlike her skimping and saving to pay) and getting adjournments and stays on their cases - left, right and center... it was galling.

    It won't stop me from paying my mortgage but it did make us feel much better - so what if we got into trouble: if you are genuine, and make an effort to pay something/communicate constantly (even if it's one sided), the courts are totally on your side.
     
  8. dub_nerd

    dub_nerd Frequent Poster

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    I'm no banking expert but if the loan is not being repaid per agreed schedule, doesn't that make it a non-performing loan and therefore a liability on the banks books that has to be provided for. Since we, the public, are the providers of capital for at least some of the banks, doesn't that make it a bit more of a problem than the registrar was implying? The banks have effectively no recourse on these non-performing loans, and then people wonder why SVRs are so high.
     
  9. newtothis

    newtothis Frequent Poster

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    Last edited: Mar 16, 2017
    Well done! I can't say I'm in the least surprised. The biggest question of course is why your friend was there in the first place, but then you've identified the probable reason yourself (equity in house exceeded mortgage value).

    As you say, it's galling to see the amount of wasted time and effort spent in the court system. On the lender's side, it's not clear why anyone who is either not engaging and/or not paying anything should be given much leeway in court; on the borrower's side, it's not clear why anyone making genuine effective efforts (as in your friend's case of paying interest plus some extra) should even be in court.
     
    Last edited: Mar 16, 2017
  10. Brendan Burgess

    Brendan Burgess Founder

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    Hi dub_nerd

    If there is equity in the property and if the borrower is repaying at least the interest on loan as it appears in ZigaZaga's friend's case, then the bank is not at much risk and their position is improving. But you may be right - the capital requirements may be higher.

    As someone who campaigns for lower interest rates, I have no problem in facilitating Ziga's friend. It the other people she saw who were paying nothing, I think we should focus our attention on resolving.

    Brendan
     
  11. Brendan Burgess

    Brendan Burgess Founder

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    Ziga

    That is a very encouraging story.

    Accords 100% with my experience in the courts.

    The Registrar does not have the power to strike out proceedings. Having said that, I have heard of them doing it before - they often exceed their power. Did you get a copy of the order? Did they strike it out or adjourn it generally. From your description, it seems that they struck it out. The bank would have to apply to the Circuit Court to reinstate them, which they probably won't bother doing.



    Well done, even if it's a fairly low threshold to exceed. :) Can I ask you your background? Had you spoken in a court before? Are you used to making presentations?

    Can I ask which county this happened in? The Dublin Registrar does not allow anyone who is not on record to speak. I have seen barristers and solicitors struck down by her, as they were not on record. It's a tough one for the Registrars as sometimes the Freemen try to speak on behalf of the borrower and they try to turn it into a show trial and disrupt the courts.
     
  12. Gordon Gekko

    Gordon Gekko Frequent Poster

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    All true, but we are a society first and an economy second.

    And in any event, surely it costs us more to house a homeless family rather than convert a mortgage to interest only...
     
  13. Brendan Burgess

    Brendan Burgess Founder

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    I was down in Court 22 again this morning.

    I didn't fully follow what application EBS's barrister was trying to make. But she appeared to be looking to amend a Grounding Affidavit so that it read EBS DAC.

    Judge: You were here in January changing the name on the Civil Bill to EBS DAC. Why are these motions not co-ordinated?
    Barrister: some response
    Judge: Have you read the Civil Bill and the Grounding Affidavit?
    Barrister: Yes.
    Judge: What is the reference to the "EU endorsement" about?
    Barrister: I don't know.
    Judge: Nor do I. Who is drafting these proceedings?
    Barrister: The solicitor
    Judge: Anyone reading these proceedings would see within 5 minutes, that the Civil Bill and Grounding Affidavit do not match.
    Barrister: I can't explain that
    Judge: I can guess. Someone is just pressing a button on a computer. - cut and paste - it's not drafting - It is blatantly obvious
    [All the time the solicitor is there facing the barrister - seemingly nonchalant. I have no idea why the Judge did not ask the barrister to explain.]
    Judge: The Grounding Affidavit and Civil Bill were initiated in March 2014. We are now at March 2017.

    The solicitors involved were Ivor Fitzpatrick & Co., one of the larger firms.

    Whatever order they sought was granted.
     
  14. Brendan Burgess

    Brendan Burgess Founder

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    In two other cases which I witnessed, the barristers did good jobs. I was almost surprised to hear a case where the paperwork was in order, where it was presented in a systematic manner, where they were able to answer the Judge's questions and where they got the orders they wanted.

    They were very interesting cases, and I will report on them separately.
     
  15. cremeegg

    cremeegg Frequent Poster

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    Last edited by a moderator: Mar 16, 2017
    Why will it not stop you from paying your mortgage? Apart from a moral sense that it is the right thing to do, is there any reason why anyone in this country should make their mortgage payments.
     
    Last edited by a moderator: Mar 16, 2017
  16. demoivre

    demoivre Frequent Poster

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    Probably nothing more than staggering arrogance. From what I've seen banks also award themselves interim legal costs before the case is concluded, apply them to the borrowers mortgage account, without any direction from the judge who, AFAIK, is the only one who can award costs.
     
  17. ZigaZaga

    ZigaZaga New Member

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    Brendan,

    I work in the charity sector as a support worker for families, I do a lot of advocacy work and spoken in court a couple of times, in support of a case only. I only went in because my friend was not going to bother showing up.

    I don't want to share her history as it's not my place to do that. When we were in the room - it was full of solicitors and legal people, there were very few defendants there. When the case was called I just stood up and asked permission to speak on behalf of xxx. Registrar asked my name and what my job was, then said "ok proceed." There was no adjournment. Her exact words was "What more do you want? Please take your order back to xxx, we will not proceeding with it... move to strike..." If I'm wrong and that is not same as being 'struck out', apologies!
     
  18. Brendan Burgess

    Brendan Burgess Founder

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    Hi Ziga

    Well done again.

    The court proceedings are confusing. But you did a good job for your friend.

    She may have struck out the proceedings. She doesn't have the authority to do that, but sometimes they exceed their authority. In your friend's case, the lender will lick their wounds.

    She may have just struck out that motion whatever it was. But doesn't sound like it.

    Ask your friend to check her mortgage statement for costs. The lenders often add costs without a court order.

    Brendan
     
  19. ZigaZaga

    ZigaZaga New Member

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    Will do that... thanks!
     
  20. dub_nerd

    dub_nerd Frequent Poster

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    True, but consider all the other people who would be more than delighted to pay the interest only rate on that same house. Why should the mortgage holder get to be the beneficiary of reduced payments just by virtue of being the person in situ when they stopped paying their mortgage? Why should they not join the queue for cheap housing along with everyone else?