# Cork judge throws out cases taken by Bank of Ireland Mortgage Bank as "it is not a legal entity"



## Brendan Burgess (12 Nov 2015)

Séamus Coffey reports on the proceeding in Court Circuit Cork today. A bad day for the banks all round. The Judge refused one lender a repossession although the borrower had consented to it. But the following is potentially more significant. 

"#2 and #3 actually turned out to be the most interesting.  These were applications for substitute service by Bank of Ireland.  It seems the borrowers can be found to effect service on them so the bank had an application before the court to allow substitute service by ordinary post.  Both applications were struck out by the judge with no order allowing substitute service.  Why were they struck out?  Because the motion was in the name of Bank of Ireland Mortgage Bank.  The judge asked “what is the legal status of the plaintiff?” He was told it was a bank.  He said a bank is not a legal status and struck out the applications.  The judge said a plaintiff has to have a legal status and that you can’t bring an action before the court if you don’t have legal status.  As Bank of Ireland Mortgage Bank was also the plaintiff on another case the issue was going to arise again."

I have checked in the CRO and indeed Bank of Ireland Mortgage Bank is a properly constituted legal entity. [broken link removed]

So these cases should not have been thrown out.

Brendan


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## Sarenco (12 Nov 2015)

Bizarre.  

Bank of Ireland Mortgage Bank is an Irish incorporated company that happens to be authorised by the Central Bank.  Even if it was an unregulated, unincorporated partnership or had some other legal or regulatory status, what would it have to do with the matter before the court?

At this stage, our justice system is starting to look less than fit for purpose.

And people wonder why mortgage rates are so high?


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## Brendan Burgess (12 Nov 2015)

Sarenco said:


> Even if it was an unregulated, unincorporated partnership or had some other legal or regulatory status, what would it have to do with the matter before the court?



I think that the point the judge was making was that he did not recognise it as a legal entity. He expected to see Bank of Ireland Limited or Bank of Ireland plc. or the Governors and Company of Bank of Ireland.   The unfortunate barrister for Bank of Ireland Mortgage Bank did not understand its status. 

Brendan


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## Mrs Vimes (12 Nov 2015)

"What is the legal status of the plaintiff?"

"The plaintiff is an Irish company limited by shares/guarantee"

That barrister has dropped the ball! Judge was right to query the legal standing if it wasn't clear in the papers or clarified in court. Costs to the defendant, i assume?

Refusing a repossession which the borrower had consented to is bizarre indeed.


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## Sarenco (12 Nov 2015)

What does the corporate status of the lender have to do with anything?  Would a judge make the same inquiry if Danske Bank A/S or AIB Mortgage Bank (or some other mortgagee that the judge had never heard of) made the application?

The corporate status of the applicant is simply not relevant to the matter under consideration - whether or not to make the repossession order in favour of the named mortgagee or its permitted assignee with the consent of the mortgagor.

If the mortgagee or its assignee had been dissolved (or even never existed) then nobody could enforce the order.  Why should that be a concern of the judge?

Even if the judge's curiosity got the better of him why strike out the application?  Why not simply adjourn the application until counsel for the lender was in a position to address the (completely irrelevant) question?


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## Sophrosyne (12 Nov 2015)

The Bank of Ireland Mortgage Bank was also mentioned in # 6.

“Again the judge asked “who are you?” and “is there a legal entity called Bank of Ireland Mortgage Bank?”

By this time the barrister had acquired a certificate of incorporation and articles of association and presented them to the judge.

The judge asked “does Bank of Ireland Mortgage Bank exist in law”?

The barrister replied that she was providing the certificate of incorporation for the company that shows its legal status.

She also presented articles of association but they were dismissed by the judge who said “you can write anything on them”.

The judge said that proceedings have to be correctly entitled.

The barrister said she presented the certificate of incorporation for the bank.

The judge said that she had presented *a certificate of incorporation *for Bank of Ireland Mortgage Bank *Plc* but that the proceedings were been undertaken by Bank of Ireland Mortgage Bank.

The judge said Bank of Ireland Mortgage Bank has no legal status; Bank of Ireland Mortgage Bank Plc has legal status.

The judge said the plaintiff was not properly described and the struck out the entire repossession application.

He concluded that “if banks want to sue people they must describe themselves properly”.


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## rob oyle (12 Nov 2015)

This is surreal... it sounds like some of the technicalities that people have claimed to get off drink driving convictions before, only in this case the technicality is brought up by, and only seems important to, the judge himself.
Justice delayed (in the case of consenting parties) is justice denied.


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## Mrs Vimes (12 Nov 2015)

Sarenco said:


> What does the corporate status of the lender have to do with anything?  Would a judge make the same enjuiry if Danske Bank A/S (or some other mortgagee that the judge has never heard of) made the application?



The identity of all parties has to be proven in every court application. In the case of a natural person this is done by stating "I, _name_, _occupation_ of _address_ aged 18 years and upwards make oath and say as follows...". In the case of an application on behalf of a company it is necessary to give the full registered name of the company, its full description and address. I assume since the judge raised the question that there was some deficiency in the foregoing in this case.



Sarenco said:


> The corporate status of the applicant is simply not relevant to the matter under consideration - whether or not to made the repossession order in favour of the named mortgagee or its permitted assignee.



The identity of the applicant is *fundamental* to any application being made. If the corporate status of the applicant cannot be easily ascertained then its locus standi is also unclear and the application must fail.
been dissolved (or even never existed) then nobody could enforce the order.  What should that be a concern of the judge?[/QUOTE]

Okay, you are suggesting that there is no harm in the judge granting an application to a non-existent _person_.


Sarenco said:


> Even if the judge's curiosity got the better of him/her why strike out the application?  Why not simply adjourn the application until counsel for the lender was in a position to address the (completely irrelevant) question?



I don't think the question is irrelevant at all. If the Barrister has failed to rectify the deficiencies in his application the application must be dismissed. He appears (from BB's account) to have been given the opportunity to do so by the judge.

EDIT: crossed with a few posts I haven't read yet - all comments based on BB's original report and Sarenco's first response.


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## Mrs Vimes (12 Nov 2015)

Have now read the other responses.

The bank appear to have made some basic errors in their applications.

Given that they have access to the finest legal eagles available, is that really acceptable?

If so, how many errors should the courts accept from people who do not have access to legal representation?


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## Sarenco (13 Nov 2015)

The corporate history of the applicant is completely irrelevant!

As it happens, Bank of Ireland Mortgage Bank was incorporated as Bank of Ireland Mortgage Bank plc on 21 May 2004 and re-registered as a public unlimited company, with the name Bank of Ireland Mortgage Bank, on 23 June 2004. 

What does that have to do with the application?  Companies often change their names or re-register as private, unlimited or public companies.  It is still the same legal entity, with the same registration number, and the corporate history of any applicant is simply irrelevant.

Even if it was a different entity to which the loan originator assigned or transferred its interest, what would that have to do with an application for a possession order?

And why strike out a perfectly lawful application?  Why not simply adjourn the matter pending clarification of whatever detail the judge considers appropriate?

If we want secured lending interest rates then we have to allow lenders to exercise their security interests.  Otherwise mortgages are nothing more than personal, unsecured loans and will be priced accordingly.


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## Sarenco (13 Nov 2015)

Mrs Vimes said:


> Have now read the other responses.
> 
> The bank appear to have made some basic errors in their applications.
> 
> ...



Two obvious points:-

1.  The mortgagor consented to the application.  The court was not looking out for the "little guy" in dealing with this application; and

2.  There is no suggestion in the report that the applicant was not clearly identified in the court documents or that there was any error on the face of the application.

This was clearly a solo run on the part of the judge.


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## Mrs Vimes (13 Nov 2015)

The judge didn't ask about corporate history, just corporate identity.

If I changed my name and then decided to sue a person who owed me money from last year, I fully expect to have to prove that I am still the same person, albeit with a different name, and am therefore still owed the money.

"why strike out a perfectly lawful application"? Why not put the onus on the applicant to perfect the application before it is made?


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## Mrs Vimes (13 Nov 2015)

Sarenco said:


> Two obvious points:-
> 
> 1.  The mortgagor consented to the application.  The court was not looking out for the "little guy" in dealing with this application; and
> 
> ...



BB mentioned a number of different applications on today's list - I think we are talking about different ones.


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## Sarenco (13 Nov 2015)

rob oyle said:


> This is surreal... it sounds like some of the technicalities that people have claimed to get off drink driving convictions before, only in this case the technicality is brought up by, and only seems important to, the judge himself.
> Justice delayed (in the case of consenting parties) is justice denied.



You have hit the nail on the head.  This has absolutely nothing to do with the administration of justice.


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## Sarenco (13 Nov 2015)

Mrs Vimes said:


> BB mentioned a number of different applications on today's list - I think we are talking about different ones.



I am referring to the applications referenced in Brendan's original post (applications #2 and 3) but the same comments are relevant to the application referenced in Sophrsyne's post (application #6).


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## Sophrosyne (13 Nov 2015)

Mrs Vimes said:


> Have now read the other responses.
> 
> The bank appear to have made some basic errors in their applications.



That was the problem.


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## Sarenco (13 Nov 2015)

Mrs Vimes said:


> "why strike out a perfectly lawful application"? Why not put the onus on the applicant to perfect the application before it is made?



There is no suggestion from the report that there was anything incorrect or "imperfect" about the application.

The application appears to have been brought, on consent, by the registered holder of charge.  The fact that the barrister was apparently unaware of the corporate history of the applicant is not a good ground for striking out the pplcation.

Striking out a perfectly valid application on these grounds simply incurs unnecessary costs.  Costs that ultimately have to be borne by other borrowers.


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## Sarenco (13 Nov 2015)

Sophrosyne said:


> That was the problem.



Ok, tell us what errors, basic or otherwise, the mortgagee made in its application. 

There is nothing in the report to suggest that there were any errors in the application.


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## Sophrosyne (13 Nov 2015)

"The judge said Bank of Ireland Mortgage Bank has no legal status; Bank of Ireland Mortgage Bank Plc has legal status.

The judge said the plaintiff was not properly described and the struck out the entire repossession application.

He concluded that “if banks want to sue people they must describe themselves properly”.


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## Sarenco (13 Nov 2015)

The holder of the mortgage was incorporated as Bank of Ireland Mortgage Bank plc.  It subsequently re-registered as an unlimited company and therefore changed its name to Bank of Ireland Mortgage Bank.  

It was called Bank of Ireland Mortgage Bank when the mortgage was registered in its name.  The consensual application for a possession order pursuant to this mortgage was therefore made in the correct name.

The judge was very obviously factually incorrect in suggesting that the applicant had no legal status and there is absolutely nothing in the report to suggest that there was any error in the application.

Unfortunately the lender's barrister was unaware of the lender's corporate history.  This should have been irrelevant and we will all have to pay for these judicial ego trips.


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## Sophrosyne (13 Nov 2015)

The court will act on what is presented on the day.


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## Sarenco (13 Nov 2015)

No, the court should address whatever applications are before it.

If questions of fact, however irrelevant, arise during the course of a hearing that a party cannot address at the time, the standard procedure is to adjourn the hearing - not strike out the application.


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## Sophrosyne (13 Nov 2015)

I don't know what you are talking about.

The judge is clear to all.


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## Sarenco (13 Nov 2015)

Yes, the judge was clear.  He was also wrong. 

The consensual application was clearly made by the correct party (the mortgagee) and that party clearly exists.  Even if this or any other fact was in doubt, the judge should have adjourned the hearing until the position was clarified to his satisfaction rather than strike out a perfectly valid application.

It's really not complicated.


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## Sarenco (13 Nov 2015)

Mrs Vimes said:


> If I changed my name and then decided to sue a person who owed me money from last year, I fully expect to have to prove that I am still the same person, albeit with a different name, and am therefore still owed the money.



That's obviously the case but there is no suggestion here that the mortgage was registered in any name other than Bank of Ireland Mortgage Bank.  

I don't know whether Bank of Ireland Mortgage Bank originated the loan itself or whether it acquired the loan from another group entity but that shouldn't matter.


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## MortgageGuy (13 Nov 2015)

Brendan Burgess said:


> Séamus Coffey reports on the proceeding in Court Circuit Cork today. A bad day for the banks all round. The Judge refused one lender a repossession although the borrower had consented to it. But the following is potentially more significant.
> 
> "#2 and #3 actually turned out to be the most interesting.  These were applications for substitute service by Bank of Ireland.  It seems the borrowers can be found to effect service on them so the bank had an application before the court to allow substitute service by ordinary post.  Both applications were struck out by the judge with no order allowing substitute service.  Why were they struck out?  Because the motion was in the name of Bank of Ireland Mortgage Bank.  The judge asked “what is the legal status of the plaintiff?” He was told it was a bank.  He said a bank is not a legal status and struck out the applications.  The judge said a plaintiff has to have a legal status and that you can’t bring an action before the court if you don’t have legal status.  As Bank of Ireland Mortgage Bank was also the plaintiff on another case the issue was going to arise again."
> 
> ...



I'd be slow to say what the judge should have done given the experience required to become one! That an institution exists in law doesn't mean the paperwork was right in terms of how they are mentioned in the civil bill. Found out last night that similar issue came up in Dublin a few times in court 33


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## Bronte (13 Nov 2015)

Mrs Vimes said:


> Have now read the other responses.
> 
> The bank appear to have made some basic errors in their applications.
> 
> ...



Totally agree with you, the incompetence is amazing.  How difficult is it for the banks with their inhouse counsel, with their access to the best legal firms and their endless pockets to get simple legal documents drawn up properly.  It is not rocket science to put the correct name of the plaintiff on a document.


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## Bronte (13 Nov 2015)

Sarenco said:


> The holder of the mortgage was incorporated as Bank of Ireland Mortgage Bank plc.  It subsequently re-registered as an unlimited company and therefore changed its name to Bank of Ireland Mortgage Bank.
> 
> It was called Bank of Ireland Mortgage Bank when the mortgage was registered in its name.  The consensual application for a possession order pursuant to this mortgage was therefore made in the correct name.
> 
> ...



The history is only relevant to show transfers from one company to another.  But the court document must be in the name of the entity that holds the mortgage.  Didn't the guy Gerry Beads win on a case like this.  (ACC bank if I remember correctly)


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## Brendan Burgess (13 Nov 2015)

*Bank's error could delay repossessions by year*

From today's Irish Times


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## Bronte (13 Nov 2015)

From that article which explains it clearly:

_In the Cork Circuit Court, Judge Donagh McDonagh struck out the cases because the bank was named as Bank of Ireland Mortgage Bank, rather than Bank of Ireland Mortgage Bank PLC.

“If banks want to sue people, they must describe themselves properly,” the judge said. Bank of Ireland confirmed three cases had been struck out because of minor inaccuracies on its paperwork._

And I take issue with the bank calling it a minor inaccuracy.  Getting your legal standing, as in your name, incorrect, is not minor.


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## Brendan Burgess (13 Nov 2015)

As Sarenco has pointed out, the judge was wrong. 

Bank of Ireland Mortgage Bank was incorporated as Bank of Ireland Mortgage Bank plc on 21 May 2004 and re-registered as a public unlimited company, with the name Bank of Ireland Mortgage Bank, on 23 June 2004. 

The case was properly taken in the name of Bank of Ireland Mortgage Bank. It is no longer called Bank of Ireland Mortgage Bank plc 

It was a fair question for the judge to raise, but the case should have been adjourned for it to be clarified, not dismissed. 

Brendan


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## cremeegg (13 Nov 2015)

Not quite Brendan, it appears from 's post No.6 above that the barrister for the bank did eventually produce a cert of incorporation *in the old* name.

So the bank on the day was given an opportunity to prove its identity but couldn't produce a cert of incorporation in its current name.


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## Sarenco (13 Nov 2015)

Every company has one, and only one, Certificate of Incorporation which details the registered number of the company, its date of incorporation and its name on incorporation.  If a company subsequently changes its name, it will be issued a Certificate of Incorporation on Change of Name and if it re-registers as another form of company (e.g. if it becomes a public unlimited company) it will be issued with a Certificate of Incorporation on Re-Registration.

However, a company’s registered number will never change – this number is the company’s unique identifier.

It’s a pity the Irish Times didn’t carry out an online Companies Office search before running the story.  It would have been clear from such a search that the factual mistake rests with the judge and not the bank.

This could all have been cleared up if the judge had simply put this matter back to the end of his list or even adjourned the matter but he appears to have been more interested in embarrassing what I suspect was a very junior barrister.


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## Brendan Burgess (13 Nov 2015)

Sarenco said:


> This could all have been cleared up if the judge had simply put this matter back to the end of his list



Agreed, but there were only a few items on the list and the hearings for all cases were over in less than an hour. 

Brendan


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## Delboy (13 Nov 2015)

The Freemen will be loving this. Beades and Co will claim 'victory' no doubt even if they weren't involved.


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## Sarenco (13 Nov 2015)

Brendan Burgess said:


> Agreed, but there were only a few items on the list and the hearings for all cases were over in less than an hour.
> 
> Brendan



Busy man! 

Seriously though an online companies office search would take no more than a few minutes to complete and the change in corporate status of the bank would have been immediately obvious to any competent solicitor.


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## trojan (13 Nov 2015)

Sarenco said:


> The holder of the mortgage was incorporated as Bank of Ireland Mortgage Bank plc.  It subsequently re-registered as an unlimited company and therefore changed its name to Bank of Ireland Mortgage Bank.
> 
> It was called Bank of Ireland Mortgage Bank when the mortgage was registered in its name.  The consensual application for a possession order pursuant to this mortgage was therefore made in the correct name.
> 
> ...


This reminds me of a case many years ago where legal action instituted by The Munster & Leinster Bank Limited was thrown out because the & did not appear in the cert of incorporation whereas the word "and" did. I hope my memory serves me right


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