Lenders have only themselves to blame for the difficulties in getting possession orders - Part 2

[Brendan Burgess]

I was down in the Dublin Circuit Court today. I continue to be baffled by how bad the legal teams for the banks are and how they make a very difficult situation for the lenders, even more difficult.

Case 1 AIB

Two proceedings on one case – the substantive case and an application to add the borrower's wife as a notice party. Judge said wife was in occupation. In March she had given an order that the proceedings be amended so that she be joined in the proceedings. Why was this not done? What is the point of these proceedings? She is on the mortgage but not on the deeds.

Counsel for AIB: I want to make her a notice party with a voice in the proceedings but without making her liable for the costs.

Borrower’s barrister: Agree judge, these proceedings are pointless.

Judge to AIB: Do you want me to amend the motion or do you want time to consider

Second call

AIB – we want to join her as the co-defendant.

Judge: Expresses absolute frustration

Counsel for borrower: What they are averring to makes no sense.

Judge: I can’t understand what good this order will do.

Judge: I can amend notice of motion . I will require a draft of a proposed amended civil bill.

To counsel for the borrower: In February, I made an order that the SFS and all documents should be submitted. They were not submitted . The arrears were €121k in May 2015. They were €173k in November 2016. You did not file a replying affidavit. The overall context is that hopefully an SFS will address this.

Adjourn the substantive proceedings to 10th October. Join borrower's wife as defendant to 30th June.

Comment
It seemed clear to me that Judge Linnane was disposed to granting an order in a case where the arrears are €173k and growing. But AIB just can't get their act together.

The barrister for AIB was very sure of his position on the first call, but changed it at the second call, as the Judge kept saying that his application was pointless. It is possible that the barrister was right and the judge was wrong, but that the barrister agreed to do as the Judge said, rather than keep fighting with her.

 

[Brendan Burgess]

Case 2- involving Start

Counsel for Start: "we want to apply for an adjournment. They submitted the SFS on 21 March and we have wrote (sic.) back asking for supporting documentation”

Judge: Did you give notice of today’s hearing and your intention to adjourn?

Counsel: Yes

Judge : Can I see it?

Counsel: It’s not on file

Judge: Does your solicitor have it? [ Solicitor for bank whispering “no” to counsel]

Judge: Have you read the paperwork in this case? [passes counsel a copy of the proceedings ]

It says that it is relying on the RV to get the order. But the Grounding affidavit makes no reference to the RV. The Supplemental Affidavit refers to a PPR. It then refers to “Section 1 of the (some ) Act” That section has no relevance.

This was first in my court in Feb 2016.
It was here again 10/2016.
It was here again to Feb 2017. It was here again March 2017.
And again today.

Who drafted these proceedings? Is the solicitor who drafted them present. [Solicitor who faces the barrister but whom the judge can’t see , shows real panic on her face and mouths something, probably “nooooooo”]

Barrister: They were drafted in the office.

Judge: These are complicated matters and should be drafted by someone experienced who knows what they are doing.

Adjourned generally

Comment

The proceedings were obviously faulty to an extensive degree,so even if the judge wanted to grant an order, she could not do so.

I have no idea why the banks use solicitors and barristers. They should have just one good solicitor who drafted the proceedings and who can answer all the questions.

 

[Brendan Burgess]

Case 3 ptsb

I was in court for this case the last time and went back today to see how it ended.

12 March hearing:
1 May 2015 first appearance
€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 were 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.

16th May

Counsel for ptsb: We are seeking an adjournment
Judge: Last time you had got the SFS.
Counsel: We just got the supporting documentation in May and haven't had a chance to review it.
Judge: Arrears have doubled since proceedings were issued . There was an Amended Repayment Arrangement, but they have not adhered to it.
You will need an up to date affidavit if you are proceeding.

Adjourned until 17th October

Comment
Borrower lodged an SFS the day before the last court hearing and in a country branch of ptsb, so the judge was going to adjourn it anyway.

Then they lodged the supporting documentation just before the adjourned hearing.

Very big arrears but ptsb are no closer to getting an order.

 

[Brendan Burgess]

If you are facing legal proceedings

Submit a half completed SFS a day or two before the case is due in court. You will get an adjournment.

Submit the supporting documentation a day or two before the adjournment, and you will get another adjournment.

If you have any mildly difficult questions to answer such as "Why are you not paying anything?" , get a solicitor to represent you and you won't be troubled by them.

Brendan