Case study Judge: "€15,700 arrears is relatively minuscule"

Discussion in 'Mortgage arrears & negative equity case studies' started by Brendan Burgess, Mar 13, 2017.

  1. Brendan Burgess

    Brendan Burgess Founder

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    Last edited: Mar 13, 2017
    I attended Dublin Circuit Court today to see the 5 cases for possession on Judge Linnane's List.

    Case 1 - Haven Mortgage Ltd vs...
    Initiated in 2014.

    I saw this in the Registrar's Court on 13th March. It was the 5th time in the court back then. The borrowers were in an arrangement and Haven sought another adjournment. The Registrar refused. Her practice is that a lender should seek an order for possession or else, strike out the case. They should not, in her opinion, keep the case hanging over the borrower. [Incidentally, most other County Registrars are happy to grant general adjournments in such cases.] The Registrar cannot strike out a case, so she sent it to the Judge's List which took place today.

    Today, Haven applied for an adjournment.

    Judge: Is that the correct name? Isn’t Haven a DAC?

    Solicitor: I don’t know.

    Judge: In October 2015, you applied for an amendment. What was that amendment?

    Solicitor: I don’t recall.

    Judge: Do you have your file?

    Solicitor: No.

    Judge: It’s crazy showing up in court without a file

    Judge: It was amended for a PPR.

    Put back to second calling for the solicitor to take instructions.

    Solicitor and Barrister now in attendance as well – it’s not a DAC, though we don’t know why.

    Judge: Adjourned generally with liberty to re-enter. “ The arrears are €15,700 which is minuscule compared to other cases I am dealing with”

    Other cases

    Ulster Bank sought permission to change the name on the proceedings to Ulster Bank DAC. The Judge struck out the application, as the borrower was not on notice.

    ptsb sought an adjournment, because the borrower who had vacated the property had now moved back in. As it was now their family home again, ptsb needs a Certificate of Rateable Valuation. Adjourned Generally.

    Haven wanted an order to deem service good. It was refused as Haven were writing to the borrower in Essex. The borrower had given that as their home address in January 2016 and the judge wanted to know how they had verified that he was still living there.

    On the 9th February, the County Registrar had refused an adjournment as it was the 6th time in court. Barrister for ptsb: We don't have the papers. Judge: Is there a solicitor here for ptsb? Belgard Solicitors were on record for ptsb, but they had nominated a town agent to represent them in the case. The judge wondered why a solicitor based in Tallaght could not attend the court. Adjourned generally with liberty to re-enter.

    My assessment
    While it is hard for lenders to get an order for possession as they have to jump through a lot of hoops e.g. amending the proceedings if they change their name, they often have themselves to blame as they are so disorganised to the extent of not having the files with them.

    Non-repossession cases

    The most striking aspect of all the cases today was the total disorganization of the solicitors and the barristers. In one case, the barrister was seeking an order against two companies which had been struck off. They were simultaneously trying to resurrect the two companies through an order of the Circuit Court. The Judge struck out the motion and the proceedings on the grounds that they were misconceived. [Despite there being “switch off mobiles” signs everywhere in the room, the barrister’s phone went off while he was addressing the judge. He tried to switch it off, but only managed to trigger SIRI so the phone announced: “Sorry I don’t understand what you want”. The barrister fumbles again apologising to the judge. And the phone repeated: “Sorry I don’t understand what you want”. It is a terrible pity we are not allowed to laugh in the court.]

    In a personal injury case, the solicitors for the plaintiff had written to the defendant seeking discovery over 8 categories, listed as A to G. The defendant had replied in some detail. The plaintiff ignored the reply and just sought an order anyway. But applied for the discovery using using numbers and apparently in a different order. The judge was very frustrated as it took the court a long time to tie in all the different documents.

    Brendan
     
    Last edited: Mar 13, 2017
  2. Delboy

    Delboy Frequent Poster

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    10 years into this crash and the Legal teams are still fumbling around with incomplete files and lack of knowledge of the cases they're dealing with. And the money they earn for this level of service!
     
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  3. dub_nerd

    dub_nerd Frequent Poster

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    You sure that wasn't a recording of the lenders' standard response to the mortgage holders? :p
     
  4. Gerry Canning

    Gerry Canning Frequent Poster

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    Brendan ,

    Congratulations on giving a few clear examples of how Lenders do not do legal business!

    For the non-genuine borrower, it opens into a web of avoidance .
    For the genuine borrower it creates confusion.
    There appears to be little consistency or clarity in cases , so how can a judge judge?

    Having proper legal names on proceedings and proving addresses is bread and butter stuff and not having it done before court is not forgivable.


    Is it that the legal profession is incompetent or is it just another manifestation of the mess that still exists in Lenders systems ?

    There appears little appetite in Lenders to present cases properly and it appears judges are just getting miffed..
     
  5. Waver

    Waver Registered User

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    If possession is eventually granted does the borrower end up paying the bill for the legal incompetence if there is equity in the property?
     
  6. Brendan Burgess

    Brendan Burgess Founder

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    If the borrower attends court, engages with the lender and pays something meaningful, it's extremely unlikely that an order will be granted against them.

    When an order is granted, it usually means that the borrower has been playing the system. Even still, the Registrar usually does not grant costs. But I have seen cases where the borrower has been messing, and the Registrar awarded costs against the borrower.

    So does the borrower pay for the legal incompetence? They shouldn't have to.

    Brendan
     
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  7. Brendan Burgess

    Brendan Burgess Founder

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    I attended the Judge's List in the Dublin Circuit Court yesterday.

    2 cases for repossession were adjourned generally with liberty to re-enter. In other words, an agreement has been reached with the borrower, and if they keep to that, they will be fine. If they break the agreement, the lender can resurrect the proceedings.
    While other County Registrars grant these almost automatically, the Dublin Registrar refuses them. She tells the lender to either proceed or strike it out. The Dublin Circuit Judge is happy to grant General Adjournments.

    3 cases were struck out on the application of the lender.

    In only one case did the lender apply for an order for possession.

    The order was refused and the case was adjourned to 16th May.
    Borrowers did not appear and were not represented
    Proceedings issued in 2014
    First court hearing 1 May 2015
    €100k arrears
    Borrower lodges an SFS in ptsb Leixlip yesterday.
    Judge: This shows that they are willing to engage, so I have to adjourn it anyway.
    This was last adjourned because there was an arrangement in place from 3/2016 to 9/2016.


    Borrower kept up this arrangement, but has paid nothing since 9/2016.
    Judge: I don’t have any booklet in front of me. (The booklet is prepared by the lender when they are looking for an order. Copies of all the documents to support the application for the order.)
    It wasn’t clear if the legal team had not supplied it or if the judge had left it behind in the office.
    Judge: In any event, I would be adjourning as an SFS has been filed.
    Barrister: My instructions are to proceed as the arrears are >€100k
    Judge: I see that there was an affidavit on 6th March clarifying the status as a PPR. When was that sent to the defendant.
    Barrister: On 13th March by ordinary post.

    Judge: You mean yesterday?

    Barrister: Yes.

    Adjourned to 16 May.

    Commentary
    This is the second time I have seen a case adjourned because the borrower handed in an SFS the previous day in a country branch of the lender. I don't know if it's coincidental or if this is advice given by one of the anti-eviction groups as a way to get an adjournment.

    As it happens, ptsb would not have got an order anyway
    • They had sent an affidavit to the borrower the previous day
    • The judge had no Booklet and the Barrister hadn't a spare copy.
    So although the case is 3 years old, the arrears are over €100,000 and the borrower did not attend court, the case was adjourned anyway.

    Other issues


     
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  8. mtk

    mtk Frequent Poster

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    IMHO It's unbelievable the messing around that has been described above ..,,
     
  9. Delboy

    Delboy Frequent Poster

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    Good job that George Soros is going to fund some legal eagles here to help out those in arrears, ensuring their human rights aren't breached.
    His millions might help to drag cases like this out to 10 years+
     
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  10. MrEarl

    MrEarl Frequent Poster

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    Hello,

    Some of the situations that Mr. Burgess has described are absolutely crazy.

    The judges should be permitted (and encouraged) to impose significant on the spot fines on the legal representatives, for such things as not having the basic documentation available or having their phones ring out during the court session etc. Such fines should be payable within a short period of time, with the threat of prison or risk of being disbarred for multiple offenses. Clearly these fines should be strictly for the account of whoever incurs them and not permitted to be recharged to the clients, or perhaps their law firms like an ordinary out of pocket expense.

    These barristers and solicitors are wasting the courts time, which in turn means they are delaying proceedings on other cases etc. That cannot be permitted, for the good of all concerned.

    Granted, we have a hell of a lot of things wrong with this little country of ours, but this looks like one easy fix imho (which probably means it will never happen ! :rolleyes:)
     
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