[FONT="]Here are some amendments I would like to see
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[FONT="] (2) [/FONT][FONT="]In [/FONT][FONT="]any proceedings brought by a mortgagee seeking an order for possession of land to which the mortgage relates in a case to which this section applies, the court, without prejudice to any other power which a court may have to adjourn proceedings, may ….adjourn the proceedings for a period not exceeding 2 months to enable the relevant person -[/FONT]
[FONT="](i) to consult with a personal insolvency practitioner with a view to the making of a proposal for a Personal Insolvency Arrangement, and[/FONT]
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[FONT="](ii) where appropriate, to instruct the personal insolvency practitioner to make a proposal for a Personal Insolvency Arrangement under the Act of 2012.[/FONT]
[FONT="]Suggested addition [/FONT]
[FONT="](iii) or on the application of the mortgagor, to give the mortgagor an opportunity to seek to sell the house in an orderly manner [/FONT]
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[FONT="]If the borrower is trying to sell the house but the bank is trying to repossess it, this would allow the judge to give more time to the borrower to agree a sale. There might need to be some restrictions to prevent the borrower from trying to sell the property and undervalue. If the borrower uses a reputable firm of estate agents and they give evidence that the offer received is reasonable, then the court should allow the sale, even if the bank objects. [/FONT]
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[FONT="]The existing text Section 2(3) [/FONT]
[FONT="](3) The court in considering an application under subsection (2)(b) shall have regard to such matters as it considers appropriate and in particular shall have regard to the following:[/FONT]
[FONT="](a) whether the mortgagor has participated in any process relating to mortgage arrears operated by the mortgagee concerned which has been approved or required by the Central Bank. of[/FONT] [FONT="]Ireland and which process relates to the land the subject of the[/FONT] [FONT="]mortgage;[/FONT]
[FONT="](b) whether the mortgagor has made any payments to the mortgagee in respect of monies advanced on foot of or secured by the mortgage in the 12 months immediately preceding the application and, if so, the amount of any such payments, the number and frequency of such payments, and the proportion which the amounts paid bear to the amount of any regular payments which the mortgagor was required to make under the terms of the mortgage or any associated loan agreement; [/FONT]
[FONT="](c) whether the proceedings have been adjourned on any previous occasion at the request of the mortgagor, and, if so, the number of any such adjournments and the period of such adjournments and the reasons for such adjournments;[/FONT]
[FONT="](d) the conduct of the parties to the mortgage in any attempt to find a resolution to the issue of dealing with arrears of payments due on foot of the mortgage; and[/FONT]
[FONT="](e) whether, having regard to the circumstances of the case, the application for an adjournment appears to the court to be[/FONT] [FONT="]primarily for the purpose of delaying the progress of the proceedings.[/FONT]
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[FONT="]Additions [/FONT]
[FONT="](f) Whether the mortgagee has made any proposals for the settlement of any shortfall remaining after the property is sold [/FONT]
[FONT="] If the lenders include a proposal to write off the shortfall, then the court should be more open to granting repossession. I use the word “settlement” as the banks don’t like the word “write-off”. And, of course, a settlement could mean, paying 10% of the shortfall in full and final settlement. [/FONT]
[FONT="](g) Whether the mortgagee and mortgagor has made any attempt to resolve the matter through voluntary sale or voluntary surrender [/FONT]
[FONT="]Where the mortgage is unsustainable and the house is too big for the borrower, they should be aiming for a voluntary sale. If the bank did not offer this, then repossession should be deferred to allow the borrower to sell the property. If the bank offered it and the borrower refused, the judge should be more inclined to grant repossession[/FONT]
[FONT="]Amendments [/FONT]
[FONT="]1) [/FONT][FONT="] I don’t like this bit[/FONT]
[FONT="]“[/FONT][FONT="]the proportion which the amounts paid bear to the amount of any regular payments which the mortgagor was required to make under the terms of the mortgage or any associated loan agreement;[/FONT][FONT="]”[/FONT][FONT="][/FONT]
[FONT="]Say I have a cheap tracker mortgage of €100k at 2% with 10 years to go. Let[/FONT][FONT="]’[/FONT][FONT="]s say that the property is worth €200k. [/FONT]
[FONT="]The monthly repayments are €920 but the interest is only €166. [/FONT]
[FONT="]If I am paying €460 per month, I am paying all the interest and also paying off the capital. The bank could try to repossess this as they would recover their loan in full and exit a cheap tracker. Tthe bank would argue under this section that I was paying only half of the amount due. In a sense, that is not really relevant. How about changing it to[/FONT]
[FONT="]“[/FONT][FONT="]the proportion which the amounts paid bear to the interest due on the mortgage ;[/FONT][FONT="]”[/FONT][FONT="][/FONT]
[FONT="]I don[/FONT][FONT="]’[/FONT][FONT="]t presume you can say [/FONT][FONT="]“[/FONT][FONT="]and where the borrower is paying at least the interest on their mortgage, they should not be repossessed[/FONT][FONT="]”[/FONT][FONT="] [/FONT][FONT="][/FONT]
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[FONT="]2) [/FONT][FONT="](d) the conduct of the parties to the mortgage in any attempt to find a resolution to the issue of dealing with arrears of payments due on foot of the mortgage; and in particular the extent to which the mortgagee has complied with the Code of Conduct on Mortgage Arrears or equivalent code as issued by the CB. [/FONT]
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