Ralf Kane loses his case against Tanager in the Court of Appeal

Dazzler123

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Judgement delivered on this in the Court of Appeal today. Five questions were referred to the Court of Appeal for clarification... The first four were linked questions and ultimately were largely based on if in possession proceedings, can the Court look behind the registered charge on the folio for any alleged deficiencies in the charge and the Court answered that it can not do so in possession proceedings. S31 of the Registration of Title Act 1964 provides that the register is conclusive evidence of the registration of a charge by Tanager. Question 5 was whether S90 applied to the transfer of the charge from Bank of Scotland (who had not been registered as owners of the charge on the folio) to Tanager. This was answered in the affirmative which essentially validates Tanagers charge.

Mr Kane has separate proceedings whereby he is challenging the registration of the charge in Tanagers name by the PRAI and this may be his only way to succeed in his argument although this judgment is a significant setback in this regard. The Possession proceedings will now go back to the High Court for hearing.
 

Brendan Burgess

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This is covered in more detail in the Irish Times Report.

Landmark ruling may affect hundreds of repossession cases
Court of Appeal upholds registration of vulture fund as owner of charge on man’s home

Mr Kane said that, because BOS never became registered as owner of the charge initially registered by BOSI on Mr Kane’s home, it was not entitled to transfer or assign it to the fund. Tanager’s registration as owner of the charge was a “mistake” by the Property Registration Authority, he claimed.


Register of titles

But the appeal court has ruled that the register of titles is “conclusive” evidence of ownership of a charge on a property and cannot be challenged.
 

Brendan Burgess

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Dazzler

What are the implications of this for the people who have had possessions proceedings against them adjourned awaiting the outcome of this case?

Can they now proceed?

Or must they await the High Court's determination on the registration by the PRAI?

I have always argued that Tanager customers should not try to rely on technical legal arguments and should try to pay their mortgage. I am concerned that some have held back paying anything hoping that Kane would get them some magical solution.


Brendan
 

Open air

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Nothing changes to the best of my knowledge,could be a few years left in this one yet.
 

Dazzler123

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Proceedings go back to the high court to hear the possession case as normal. Mr Kane cannot argue that there is an issue with the mortgage as it is registered.

However he has challenged the charge in separate proceedings against the PRA which was mentioned in the judgment where he's claiming the PRA made an error registering the charge.

It is likely he will request an adjournment of the possession proceedings pending the outcome of the PRA case. The court may grant such an adjournment.

For other cases, it is likely that Tanager will seek possession orders on the basis that the borrowers cannot challenge the entry in the land registry. I would imagine those borrowers would have to challenge the PRA too to get their case adjourned in the same way.
 

Dazzler123

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Anyone thinking that the Kane case is a solution to not paying their mortgage will be sorely disappointed. Even if Mr Kane was successful, Tanager can enforce in other ways anyway, just that they take lots of tome and legal fees.
 

Andy836

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David Hall said:
“This is a serious judgment for many people,” said David Hall, the chief executive of the Irish Mortgage Holders Organisation, speaking after the judgement. “The whole system favours the vultures.”
Rent a quote never fails to deliver. Just how long has Kane been in arrears and they still don't have possession of the house?
 

Open air

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5 years of not missing a payment with tanager and im still in court for possession of my house in the exact same way as mr kane. Who's the fool, me for paying, or him for playing them at their own game............
 

Brendan Burgess

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The High Court has dismissed his appeal.

Here is the Irish Times report. It does not appear to have been published on the High Court website.


There was “absolutely no evidence” to support Mr Kane’s contention the arrears of interest on his loan had been improperly capitalised, he also held.

The judge dismissed further claims that the effect of the assignment from BoS to Tanager was to transfer Mr Kane’s loan to an unregulated entity, giving rise to an unfairness in the contract.

Mr Kane had failed to demonstrate anything approaching an “actual unfairness” in the contractual arrangements between him and Tanager, and “certainly none” that would have any bearing on the fact an event of default has occurred giving rise to a right to seek possession.

The judge rejected a further claim that Mr Kane was not given notice in writing of the assigment of his loan, with the effect it was unenforceable against him.

BoS had written “goodbye” letters to Mr Kane and, in April 2014, Tanager wrote a “hello letter” to him stating the mortgage had been transferred to it. The hello letter, even on its own, complies with the requirements of the section, he said.

Mr Kane had not established any defence to Tanager’s claim, the judge concluded.
 

jdwex

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Ralf went full Freeman along the way.
The defendant does not deny receiving the hello letter nor could he do so, as
he returned
it to the plaintiff in an envelope on which he inscribed:
“Return to Sender
I do not recognize you.

I do not understand your intent.
I do not have an international treaty with you.
no assured value.
no liability.”
 

Brendan Burgess

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I had lost track of this a bit.

Is this right?

This time last year, the issues with implications for others were resolved by the Court of Appeal.

Yesterday's decision was just on his own case and had no significance for anyone else.

Brendan
 
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