# Power of receiver and rights (or not) of the borrower



## enidlareg (23 Sep 2020)

I am looking for some advice as I am not sure where to turn.  And apologies at the start for the long-winded lead-in, but believe me this is the short version.

We moved from Dublin prior to the crash in 2008 and held onto our house in Dublin with a view to possibly moving back if things didn't work out in the first year or so, else selling it.  Probably very naïve with hindsight.  Anyway the crash came and the house went into negative equity.. We kept up with interest repayments for some time (actually until about 4 years ago) eventually we fell behind and AIB called in a receiver and handed the loan over to Link Assets.  We tried to negotiate with Link Assets and requested consensual sale so that we could sell the house and pay back the loan - the house was not in negative equity at this stage and we felt we would have the most vested interest in getting the best price, presenting it for sale etc.  They refused. We were in the process of getting private finance to pay back the loan so that we could sell the house just as Covid hit in March and that all fell through.

Anyway, the receivers gave it to auctioneers in April who put up a 'For Sale' sign.  When the sign came down at the end of August we contacted the auctioneer to see if they would tell us if it had been sold or whatever, (as we knew there had been no Sale Agreed/Sold sign etc) . The auctioneer told us that they had had an offer on the house and that they had informed the receivers of the offer and that the prospective buyers had the finance to complete the purchase etc.  The receivers informed them to take the house off the market.  The auctioneer expressed surprise to us at what was happening and as to why the receivers were not accepting the offer, which was an attractive one by any standards (certainly one we would have accepted ourselves if we were selling the property ourselves).

A couple of days later the house appeared on BidX with an auction date of 30th September at a Guide Price of 40,000 less than the offer the auctioneer had received - there was no Reserve price listed (this may be normal for BidX - I am not familiar with how it works).  The Legal Documents never appeared online for inspection, (although legal documents were available for another property which was for auction on the same day).  Anyway Registration opened for the property a couple of days after it was listed - (registration is where you have to pay 10,000 upfront if you are going to be eligible to bid).  It seems inconceivable that someone would register for the auction if they couldn't inspect the legal documents.   I emailed  (just as an 'interested party') the addresses listed on the website for the property including info@bidX and the solicitor listed asking why registration had opened without the legal documents being available for inspection. The solicitor emailed back the following day saying  'The property has just been withdrawn from our auction due to the legal pack not being uploaded. It will be reoffered at a later date".

The estate agent informed the receivers again that he had an offer for the house (an attractive offer by any standards) and that the buyers might even go slightly higher.  The receiver wasn't interested.  We are very concerned.  We fear that the receivers are not representing our interest - maybe they don't have to? Can anyone recommend what if anything we can do.  Should we even just phone the receivers and/or Link and tell them that we know that there was what we would have called an acceptable offer made on  the house.  We have been guilty obviously of falling behind on our repayments and of burying our heads in the sand along the way.  But surely we can't have lost all our rights?  Is there some way of protecting ourselves against the house being sold at a less than 'best price' - we cannot believe that this property would do better in an online auction situation than the offer that the auctioneer received, not to mind the fear that something untoward is going on.  Does anyone know of this happening to anyone else.  Perhaps I am being untrusting but I have very little trust left in many institutions at this stage. It is very stressful to feel that everything is completely outside of your control and that you seem to have absolutely no say/rights.

Any advice would be gratefully received.  Thank you


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## Jim Stafford (24 Sep 2020)

Please clarify if the property was your family home.

Were you living in it when the Receiver was appointed?

Did you ever object to the Receiver being appointed?

Did you own any other property in Ireland at the time?

Did Link put you through the Code of Conduct on Mortgage arrears process?

Jim Stafford


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## enidlareg (24 Sep 2020)

Thank you for replying:

Please clarify if the property was your family home.
Not at that time (It had been our family home previously)

Were you living in it when the Receiver was appointed?
No

Did you ever object to the Receiver being appointed?
No.  AIB appointed the receiver.  At that stage we sought consensual sale from AIB and borrowed from family to pay all arrears.  AIB still refused consensual sale and sold the loan to Everyday/Link who continued with the same receiver.  Everyday/Link also refused consensual sale despite repeated requests.

Did you own any other property in Ireland at the time?
Yes

Did Link put you through the Code of Conduct on Mortgage arrears process?
It was AIB who appointed the receivers We did receive warning letters from AIB when we were in arrears but didn't realize that AIB had the power to call in a receiver

Thank you


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## Jim Stafford (25 Sep 2020)

If you do not currently own any other residential property in Ireland then you could ask for the Receiver to be discharged and move back into the house.

The Receiver has a duty to obtain market value.  If he doesn't then you could sue him.

Jim Stafford


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## enidlareg (26 Sep 2020)

Thank you for reply.  

Would you think we would have a case in suing the receivers if they accept an offer less than the offer they had on the table - the chances of them getting a better offer even under normal circumstances (not to mind the in current unstable economic climate) is very likely next to zero.

Also would you know is there anything we could do to encourage the receivers to take the offer on the table (rather than having to go down the road of suing, later),  Would you advise us phoning/trying to discuss with either/both the receivers/Link Assets or is there likely to be no point,


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## Brendan Burgess (26 Sep 2020)

enidlareg said:


> - the chances of them getting a better offer even under normal circumstances (not to mind the in current unstable economic climate) is very likely next to zero.



Are you connected with the person making this offer?


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## enidlareg (26 Sep 2020)

No.  It was the Estate Agent who told us that they had the offer - we don't know who made the offer.  He says that he told the Receiver this a couple times but the receiver told them to take the house off the market. Neither he nor us can understand why they would do this


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## enidlareg (26 Sep 2020)

Also something I forgot to mention is that value of the house is notably more than the loan outstanding and we really strove to get consensual sale all along so that we could sell the house ourselves.


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## Thinktank (26 Sep 2020)

AIB have done this to meny customers. It looks like they gave Links good loans when they could have got their money


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## enidlareg (28 Sep 2020)

Brendan Burgess said:


> Are you connected with the person making this offer?



No. It was the Estate Agent who told us that they had the offer - we don't know who made the offer. He says that he told the Receiver this a couple times but the receiver told them to take the house off the market. Neither he nor us can understand why they would do this


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## TLO (28 Sep 2020)

enidlareg said:


> Also something I forgot to mention is that value of the house is notably more than the loan outstanding and we really strove to get consensual sale all along so that we could sell the house ourselves.



If the value of the house is more than the loan outstanding then you don't need the lenders consent to sell.  Just instruct your own estate agent and solicitor and off you go.  

Also, this property appears to have originally been a family home.  So the original loan agreement may not have contained a provision allowing for the appointment of a receiver.   If so, then the receiver's appointment is invalid, potentially leaving you free to sell the property yourself.


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## enidlareg (28 Sep 2020)

TLO said:


> If the value of the house is more than the loan outstanding then you don't need the lenders consent to sell.  Just instruct your own estate agent and solicitor and off you go.
> 
> Also, this property appears to have originally been a family home.  So the original loan agreement may not have contained a provision allowing for the appointment of a receiver.   If so, then the receiver's appointment is invalid, potentially leaving you free to sell the property yourself.


The Receivers changed the locks and we cannot access the property. Incidentally (I don't know if it makes any difference) all of the contents of the house are ours - we left them there because we had requested consensual sale and thought the property would present better for sale furnished.

At the risk of sounding paranoid, we are concerned that something underhand is going on, for the following reasons:
1) The estate agent presented the offer to the receiver and they told them to take the house off the market. The estate agents went back to the receivers again and told them that the potential buyers were prepared to offer another 20,000 euro. The receivers refused to accept the offer and instructed the estage agents again to take the house off the market.  By any standards this was an attractive offer. Incidentally we were were very surprised that the estate agents told us all this. (We just rang them when the For Sale sign went down) and asked them straight up and they told us. We have no idea who the potential buyers are - obviously the estate agents did not tell us that and we didn't ask. The estate agent himself expressed surprise at what was happening and didn't know why the receiver was doing what they were doing.

2) The receivers seem intent on putting the house in an online auction. We feel this is a crazy decision when they have a firm offer. The house was then put up on BidX by the receiver. We cannot see any 'ordinary' house buyer wanting to buy a house in a 2-hour online auction where they have to pay 10,000 upfront to even bid in the first place and where the Legal Documents were not even made available. (The Legal Documents never went up online even though legal documents were up for other houses for sale on the same day). I emailed BidX , asking why Legal Documents were not made available for the property and why registration had opened (where a prospective bidder has to lodge 10,000) when no Legal Documents were online. The property was taken down immediately from BidX.

Call me suspicions but I feel something underhand is going on. I cannot help feeling that someone along the way is setting this property up to be sold to themselves or someone they know for less than the offer currently on the table. I don't know what we can do about it. Someone suggested that we could sue the receiver down the line if they sell below market value - but surely that could be very hard to prove. They could just say the market was fluctuating (particularly with the current economic situation). We feel we need to try to stop it at this stage if that is possible and encourage the receiver to take the offer they were made aware of by the estate agent. Does anyone know of anyone who could give us definitive advice - we don't feel that any advisory bodies (e.g. Mabs) will help us because it is not our family home. But it is incredibly stressful - we just want the receivers to sell it for the best price possible so that the matter can be settled and put behind us. We thought that receivers had a 'duty of care' to the borrower but it is hard to see how this is being met here.

Thank you if you have persevered and read this far.


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## TLO (28 Sep 2020)

The best person to give definitive advice is your solicitor.  Your goal is to get the property sold.  So here is a possible plan of action.

1) Ignore the Receiver for the moment.
2) Make an appointment to see your solicitor.  Explain that you want your solicitor to act for you in the sale of your house.
3) Have your solicitor obtain the deeds from AIB/Link.  ( This bit might be interesting ).
4) Once your solicitor is happy that s/he has the documents needed for conveyancing then contact the Receiver's EA saying that you, the owner, would like to accept the buyers enhanced offer, and put the EA in touch with your solicitor.
5) Your solicitor conveys the house to the buyer's solicitor and pays off Link/AIB in full.
6) Your solicitor pays you the surplus.


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## Leo (28 Sep 2020)

TLO said:


> 3) Have your solicitor obtain the deeds from AIB/Link. ( This bit might be interesting ).



If it has already been passed on to a receiver, I doubt there's much hope Link would even consider facilitating this.


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## enidlareg (29 Sep 2020)

Leo said:


> If it has already been passed on to a receiver, I doubt there's much hope Link would even consider facilitating this.


That is exactly what I feel too.  I don't think they would do it.  Can anyone thing of anything else we might do.


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## TLO (29 Sep 2020)

Leo said:


> If it has already been passed on to a receiver, I doubt there's much hope Link would even consider facilitating this.


I suspect you'll find the opposite to be the case.  Here's why:

1) Link bought the loan at a discount.
2) Link make an instant profit if a co-operating borrower sells the property and redeems the loan in full.
3) Link inherited the Receiver from AIB, so there's no loyalty.
4) The property was originally a family home, with a pre-2009 mortgage, meaning that it may not be possible to legally appoint a Receiver over it.
5) The Receiver has balked twice at selling it, possibly because of legal uncertainty over his authority to do so.

I would put the chances of the above strategy working as high as 80%.  But the borrower must engage his/her solicitor to act.  The use of a solicitor will give the process credibility in the eye of Link.

Another bun-fight will be, "Who pays the Receiver's outlay to date?".  This should be between Link and AIB.


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## Thinktank (29 Sep 2020)

You will just exhaust yourself going over it all the time. You are entitled to remove your contents.

 I am in similiar position. Property sold without allowing me my contents. Links are a law onto themselves. Recievers are unregulated and only act for the bank and protecting there mounting fees.

If the estate agent can give you a letter stating they have a buyer availble from an open on the market sale. You could send this to Link and the Receiver, it might be helpful, they might JUST engage with you.


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## enidlareg (29 Sep 2020)

Thanks everyone for your thoughtful and considered replies.  Yes Thinktank, it is absolutely exhausting alright and never seems to end..  Would anyone know of a solicitor who would be good in this area.  We may not be able to name solicitors here, but even if someone could point me in the direction of the 'type' of solicitor - I imagine some are strong in one area or focus on a particular type of issue etc?  Unfortunately (or fortunately I suppose), I have very little experience of solicitors apart from drafting a will some years ago.

Thank you


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## Leo (29 Sep 2020)

TLO said:


> 1) Link bought the loan at a discount.
> 2) Link make an instant profit if a co-operating borrower sells the property and redeems the loan in full.



Link have already refused a consensual sale some time ago ever though 'the house was not in negative equity at this stage'. What makes you think they would do a deal now? Perhaps they more open to deals now than they were previously.



TLO said:


> 3) Link inherited the Receiver from AIB, so there's no loyalty.



The timing isn't clear from the OP, but the introduction of Link & the receiver are mentioned in a single sentence suggesting those events happened around the same time. That would be unusual, I would wonder why would AIB appoint a receiver and then sell on the loan in a short space of time. Perhaps OP could clarify timing of those events. If Link wanted to take back control they'd need to formally remove the receiver, paying their costs to date in the process. 



TLO said:


> 4) The property was originally a family home, with a pre-2009 mortgage, meaning that it may not be possible to legally appoint a Receiver over it.
> 5) The Receiver has balked twice at selling it, possibly because of legal uncertainty over his authority to do so.



Receivers have been successfully removed from family homes, but the family home argument is weak if they were living in the other property they owned. The majority of challenges to the appointment of receivers fail though.

If the receivers have concerns about authority, they'd be unlikely to list it for auction, but it would be interesting to know the story with the legal pack and whether an issue was discovered compiling that.

Wasn't part of the Land and Conveyancing Law Reform Act 2009 brought in to address the automatic right to appoint a receiver to a mortgage under the 1881 Conveyancing Act? See [broken link removed].


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## Thinktank (29 Sep 2020)

Leo said:


> Link have already refused a consensual sale some time ago ever though 'the house was not in negative equity at this stage'. What makes you think they would do a deal now? Perhaps they more open to deals now than they were previously.
> 
> 
> 
> ...


Is there any recourse if receiver allows sale proceed with contents when they were told they were not for sale?


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## Leo (29 Sep 2020)

Thinktank said:


> Is there any recourse if receiver allows sale proceed with contents when they were told they were not for sale?



From what I read, the law is very much on the receivers' side, but I haven't seen anything were contents were in dispute so I'm not sure what the outcome there would be.


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## TLO (29 Sep 2020)

enidlareg said:


> Would anyone know of a solicitor who would be good in this area.



Try Anthony Joyce, www.anthonyjoyce.ie


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