Tanager vs. Ralf Kane in the High Court

[Brendan Burgess]

I sat in on the first day of this yesterday. It continues today, but I have had enough.

I didn't follow many of the legal arguments and it was difficult to hear at times, so this can only be a partial report

Tanager went first and Ralf Kane responded. But it makes more sense to report Ralf Kane's arguments first

Background
Kane drew down the mortgage in 2006
31 October 2010 - BoSI transferred the mortgage to Bank of Scotland plc a UK company
In 4/2014 BoS plc sold the mortgage to Tanager Ltd
Tanager Ltd became Tanager DAC

BoSI registered a charge with the PRA
BoS plc did not register a charge
Tanager registered a charge with the PRA

5/2012 - BoS issued an arrears demand
3/2013 - date of last mortgage payment
14/4/2014 -t/f to Tanager
25/4/2014 Tanager registered the charge with the PRA
30/8/2014 - Balance was €290k with arrears of €56,941
21/1/2015 - Circuit Court proceedings initiated
24/4/2017 - Judge in Circuit Court dismissed Tanager's case
31/10/207 - This is an appeal by Tanager against the Circuit Court's decision

This doesn't seem to be a review as such. The case appears to be being heard from scratch.

Kane's case
Kane represented himself. He did much better than I had expected, but it was not always easy to follow. He had a McKinsey Friend the last time, but was completely on his own this time. There were others in the court room who were probably from the Hub or Irish Land League, but they did not assist him in the court in any way.

1) (This was a new point made in an affidavit filed on Friday last.) The way in which Tanager has calculated the arrears means that they have effectively capitalised the arrears, so there are actually no arrears. The Master of the High Court criticised this practice by Tanager. The Attorney General in Northern Ireland described this as "double billing", "unconscionable behaviour" and "criminal behaviour".

So there are no arrears due and the demand letters are wrong.

2) The interest rate is not shown on the arrears statement, so I don't know what interest rate I am on.

3)They are in breach of contract. The mortgage offer says that I will be on a margin over the ECB's "Main refinancing operations minimum bid rate"

This was discontinued on 8/10/2008. (See list of ECB rates here.)

4) Bank of Scotland plc did not register a charge with the PRA. So therefore Tanager should not have been able to register a charge. It was done in error by the PRA.

5) The sale of assets from Bank of Scotland Ireland to BoS plc did not comply with European legislation so the transfer was null and void.

(They adjourned matters at 4 pm, so he may make other points this morning.)

 

[Brendan Burgess]

Tanager's case

1) This is really simple.
The nub of the issue is Kane's argument is that Tanager has no right to take a case as they had no right to register a charge with the PRA.

Case law is very clear. Once a charge is registered with the PRA, it is conclusive evidence of title. There is no scope for going behind it except in cases of fraud, or error. There was no fraud here. And there was no error. Judge: Kane disputes that there was no error?

Kane argues that as BoS plc did not register the charge, they can't discharge it. This is a non sequitur. Discharging it means something else. There is no obligation on a charge holder to register a charge. They miss out on some rights by not doing so, but they are not under any obligation to do so.

There was no necessity for BoS plc to register the charge. Their choice of not registering it did not in any way stop Tanager registering it.

It's clear that BoSI sold the mortgage to BoS plc and that BoS plc sold it to Tanager. They are the correct owners of the mortgage and so have the right to register the charge. (The Supreme Court has held that BoSI did sell the mortgages to BoS plc)

There were cases where BoS plc could not proceed because they were not the registered owner. But this is not the case here. The registered owner is Tanager.

2)(I did not understand the arguments about the failure to comply with European law.)

3) Kane argues that he did not get "good bye" letter from Bank of Scotland, but he did get an "hello" letter from Tanager. There is no legal requirement for such letters, although they are good practice.

4) The Main Refinancing Rate was not discontinued. The method of calculating it was changed.
In any event, in 2007, Kane fixed his mortgage for 5 years at 4.89% and it reverted to the SVR after that.

 

[Browner]

Well done and great report Brendan.
Nervous times for the man but I really hope it goes his way.
It will give Tanager such a kick if they lose that may be just may be they will start to treat people with a bit of respect rather than bullying them the way they are.
Fingers cross.

 

[cremeegg]

Well done and great report Brendan.

+1

Nervous times for the man but I really hope it goes his way.
It will give Tanager such a kick if they lose that may be just may be they will start to treat people with a bit of respect rather than bullying them the way they are.
Fingers cross.

The man borrowed the money, bought the house and hasn't made a repayment since 2013. Who is bullying whom here ? Get a sense of reality.

If there were errors in the transfer of the security from the original lender to the current owner of the debt, well that may change the debt from secured to unsecured, but it hardly erases the debt.

 

[Browner]

Cremeegg:
I don’t know the mans circustances but I believe the man has gone through a lot of hardship- some from Tanagers approach to dealing with people.
Reality is a company called Tanager who treat people like dirt and are getting away with it. They do not care about the law or their moral conduct with dealing with people who want to come to a solution with them. People who ran into differculty and are now coming through hard times.
These people want blood and don’t care what the end result is and that includes people taking their lives.
I know the reality!

 

[newirishman]

From Brendan's report it doesn't look like the chap has engaged in a meaningful way with the lender when he was in difficulty. Maybe someone could clarify that?
Even so, *over 5 years* not paying a single penny back? I have no respect for that man.
Regardless of how atrocious Tanager might have acted or not.

 

[Tanagable]

I think that Brendan is over simplifying the arguments put forward by Ralf, Only the Judgement and the subsequent appeal to the Supreme court will tease these out, In relation to whatever took place in about payments. I am of the opinion that if I borrowed money from a Gentleman and he decided to sell the loan to a tramp, who showed up on my doorstep seeking payments. I would slam the door in their face. I fail to see the difference just because it is a bank selling to a large company. Or are people still so stupid that they trust the banks.

 

[newirishman]

I think that Brendan is over simplifying the arguments put forward by Ralf, Only the Judgement and the subsequent appeal to the Supreme court will tease these out, In relation to whatever took place in about payments. I am of the opinion that if I borrowed money from a Gentleman and he decided to sell the loan to a tramp, who showed up on my doorstep seeking payments. I would slam the door in their face. I fail to see the difference just because it is a bank selling to a large company. Or are people still so stupid that they trust the banks.

No payments for over 5 years and you are talking about Gentleman like behaviour? Whatever.
The mortgage is still regulated by the same laws and codes of conduct as when it was with BOSI.
The man took the money. He signed the contract. He failed to upheld his obligations.
If Tanager has broken their obligations, then this case will hopefully put an end to this, and maybe a fine in top.
But that man better starts paying his debts.

 

[Open air]

That may well be your opinion but the tramp, in your example, could certainly take steps to enforce the loan if he can demonstrate that he acquired the loan from the gentleman.

And the borrower deserves to lose all protection that is afforded to a borrower from a pillar bank is it?

 

[Open air]

From Brendan's report it doesn't look like the chap has engaged in a meaningful way with the lender when he was in difficulty. Maybe someone could clarify that?
Even so, *over 5 years* not paying a single penny back? I have no respect for that man.
Regardless of how atrocious Tanager might have acted or not.

You cannot engage with a entity that has zero willingness to engage with you.How you can have no "respect" for someone without knowing their personal circumstances is extremely harsh to say the least.

 

[Sarenco]

And the borrower deserves to lose all protection that is afforded to a borrower from a pillar bank is it?

No, borrowers still have the same regulatory protections after a loan sale - the application of the various Central Bank Codes are not limited to BoI and AIB (the two, so-called, pillar banks).

In any event, non-cooperating borrowers lose the benefit of MARP. A failure to pay a penny over 5 years would indicate that Mr Kane is such a borrower.

But, hey, rant on...

 

[Brendan Burgess]

I must say that I was watching the case yesterday and was not sure who I was up for.

I am familiar with cases such as Open air's . They have made payments all the time, despite serious financial problems, and Tanager have no interest in dealing with them. I would like to see a system, whereby a judge or whoever, makes a decision that the mortgage is sustainable and that Tanager can't keep hassling them.

At the same time, I have no sympathy for guys who don't pay anything and try to avoid their debts using legal means. I would like if the same judge could just say "You haven't paid anything at all in two years - order for possession granted".

My concern is that the hard nosed chancers will get away with it, while the decent guys will cave in.

Brendan

 

[Sarenco]

I must say that I was watching the case yesterday and was not sure who I was up for.

It really doesn't matter who you are rooting for Brendan.

This is a classic example of a borrower that is trying to delay the inevitable by advancing "clever" technical arguments.

Bear in mind that Mr Kane has not repaid a bean in 5 years.

I am familiar with cases such as Open air's.

I've no knowledge at all about OpenAir's circumstances but I thought this thread was about the High Court hearing that you attended.

I would like to see a system, whereby a judge or whoever, makes a decision that the mortgage is sustainable and that Tanager can't keep hassling them.

We already have "no veto" PIAs - what else would you propose?

Tanager may well be impossible to deal with but borrowers have ample legal mechanisms available to them to definitively deal with their debts.

In any event, that has nothing to do with the merits (or otherwise) of Mr Kane's arguments.

At the same time, I have no sympathy for guys who don't pay anything and try to avoid their debts using legal means. I would like if the same judge could just say "You haven't paid anything at all in two years - order for possession granted".

And yet you are in two minds about Mr Kane's case? Sorry Brendan but that makes no sense to me.

 

[Rambo1]

So , has there been a judgement on this case yet ?

 

[Open air]

Judgement reserved for month or so.

 

[Brendan Burgess]

And yet you are in two minds about Mr Kane's case? Sorry Brendan but that makes no sense to me.

I would like to see them both lose.

Tanager are going after a lot of good guys. I would be delighted to see them stopped from doing so if it turned out that they had a problem with their charges.

But, at the same time, I don't want to see guys getting away without paying.

That is why I am in two minds.

Brendan

 

[Rambo1]

Clearly, there are some legal hurdles for Tanager to overcome ?

 

[Sarenco]

I would like to see them both lose.

Well I hope the Court will continue to deal with individual cases on their individual merits and will not take extraneous, irrelevant matters into account.

If Tanager are being unreasonable in dealing with arrears, distressed borrowers would be well advised to avail of the legal mechanisms available to them to take the matter out of Tanager's hands.

 

[Rambo1]

Sarenco , I concur with your hope "that the court will continue to deal with individual cases on their individual merits and will not take extraneous, irrelevant matters into account"

Perhaps if the court was to say firstly look at relevant paperwork and procedures at the time and before the commencement of the original alleged agreement between a BOSI Mortgage holder and BOSI the problem or problems may appear /commence right there? (Or maybe the original mortgage holder may have to point them out to the court ?) even before the mortgage holder fell into arrears ? And Perhaps BOS may actually have a problem now ? And Perhaps Tanager may now have to go back to BOS PLC or Llyods or whoever they bought the original loan book of for the discount of up to 80% and get €€€€€€€€€

Clearly its not just down to the legalities of the transfer to Tanager etc and perhaps this is now known by all parties ? or not?

Just my thoughts , I continue to pay my full monthly amount 32 consecutive months and no deal from Tanager !

This is going to go on and on...............until the next scandal !

 

[Brendan Burgess]

If Tanager are being unreasonable in dealing with arrears, distressed borrowers would be well advised to avail of the legal mechanisms available to them to take the matter out of Tanager's hands.

Hi Sarenco

I have advised the Tanager borrowers I am dealing with to first and foremost try to make their repayments and rely on the Registrar of the Circuit Court adjourning the case. I have advised them not to start challenging the legal validity of Tanager's attempts to repossess their house. They are way too uncertain. If a borrower makes a legal challenge, the case is sent to the Circuit Court judge where the chances of an order for possession being granted are much higher.

This does not apply to cases where they consider that Tanager did not comply with the MARP. That is a reasonable objection to bring it at this stage, if it's correct.

If, at the end of the normal process, the Registrar or the Judge is about to grant an order, by all means, use the legal challenge, but only as a last resort. For most people who got the legal paperwork recently, the legal challenges will have been clarified by the time they get to them.

Brendan