# Dublin Registrar's attitude to borrowers changes - risk of repossession increases significantly



## Brendan Burgess (13 Dec 2015)

I attended the Registrar's List on Thursday and there have been some significant developments.  First the overall summary


A Practice Direction Adjournment is where a case is automatically adjourned on its first appearance in the Registrar's List.

A peremptory adjournment is where the bank(or the borrower) is given one final adjournment.  At the next hearing, they will not be given another adjournment.  An order will be granted or the case will be struck out.

She also made it clear to two or three borrowers that she would be making an order for possession against them the next time, if the bank wished to proceed.

*The Registrar's attitude has changed quite dramatically which should worry borrowers *

She granted an order where the last payment was made as recently as September 2015 for €1,500.  I have not seen this in any court before. See case no. 3 below.

In all the other courts and in this court previously, whenever a bank applied for an adjournment, it was granted automatically, no questions asked. But on a number of occasions, the Registrar stated "This is not an adjournment jurisdiction".  She is telling the lenders to proceed with the case or strike it out. This puts the bank in a very difficult position. If they have reached an Alternative Repayment Arrangement or even if the borrower has started paying something without a formal arrangement, they are happy to adjourn it to see how the borrower behaves. But they don't want to strike it out as that will put them back to square 1 if the borrower stops paying.

Where she granted orders, she also gave orders for the full costs.  I had not seen that before.

In four of the five orders, she granted stays of only 3 months. In other courts, stays of up to a year were granted.

In one case, she was close to granting an order but gave a one month adjournment instead because the borrower claimed that an employee of the bank had said that if they paid €400, the bank would review the case. She gave out to the borrower for not knowing the name of the person to whom he had spoken. Normally a payment of €400, in fact, normally just turning up in court, would result in a 6 months adjournment. (Case study 11 below)

In one case, the borrower wanted an adjournment and the bank consented. The Registrar asked the borrower on what grounds he wanted an adjournment and as he hadn't got any real grounds, she told the solicitor to take instructions.  On returning to court, the bank then said he wanted to proceed with an order rather than have it struck out. After a bit more discussion, the Registrar gave a peremptory adjournment.  In this case, I think that the bank would have been quite happy to keep adjourning rather than to seek an order. But they are being forced to seek an order.  Of course, the bank could get the order and choose not to enforce it. But from the borrower's point of view, it would be much better if the bank did not get the order in the first place. 

In another case which was the first appearance in the court, the borrower said that he was paying the monthly repayments in full, and paying off some arrears. As it was the first appearance, the adjournment was automatic, but she said to the borrower "Paying your mortgage in full is not enough to make this go away. You must reach an agreement with your bank".

In another case, the borrower applied for an adjournment and she told him that any such application should be made on affidavit and the reason should be given. She granted the adjournment, but was sending out a clear message.

In one case, the borrower said that she had not received notice of the case by registered letter. The Registrar told her that the bank had the evidence from the post office that a note had been left to say that there was a registered letter waiting for them in the post office, and they had not collected it.



*The banks need to be very worried about the change in attitude as well *
It is very difficult for a lender to get their paperwork in order. They must find the borrowers within a particular time scale to serve the papers. If they don't, the civil bill might be out of time.  They must notify the borrower that the case will be in court and they must have the original of that notice with them in court. They must serve this notice at least 21 days before the court date. They must have the appropriate Certificate of Rateable Valuation. There are many other potholes which the bank can fall into, which will prevent them getting an order, no matter how well justified it is.

She gave 14 peremptory adjournments. She is telling them to seek an order or else it will be struck out. It's not clear to me what will happen if their paperwork is not in order. Will she strike them out or will she give a technical adjournment?

On the other hand, there were two cases where original documents were not in court and she granted orders in both these cases on the basis of an undertaking that the originals would be lodged in court later that day.  I have not seen this "flexibility" towards the banks in any other court or in this court before.  Usually the lack of a document would result in an adjournment.


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## Brendan Burgess (13 Dec 2015)

*Order 1 Bank of Ireland *
This was a very rare case of an order being granted despite the borrower showing up in court and asking for an adjournment.
Original mortgage €90k in 2003 and €360k in May 2005
Balance today €453k, including €148k arrears
Last payments April 2011 and August 2012
The borrower's arguments for an adjournment

I would like an adjournment so that I can engage with the bank - to which the Registrar replied that she had had plenty of time to engage and pay something but had not done so.

I now have a job and can start paying in January 

I understood that all cases were being adjourned - to which the Registrar told her that she was misinformed
The Registrar did ask the lender if they would like to talk to the borrower. But the solicitor for the bank said that she saw no point in any further talk and that they wished to proceed

The Registrar granted the order.
The borrower asked for one 4 week adjournment as she felt that she could put an acceptable proposal to the bank.
The Registrar refused.
The borrower said that she was not consenting to the order.
The Registrar told her that her consent was not required

The borrower left telling people that she would be appealing the order.

*Order 2 Ulster Bank *
Borrowed €260,000 in August 2005
Last payment May 2013
Balance today €284k , including €42k arrears
Has not responded at all to the bank.
Costs awarded.
No mention of a stay.

*Order 3 KBC Bank*
Borrowed €305,000 in April 2008
Periodic default since February 2013
Last payment made in September 2015 for €1,500- they made 3 payments in June. 
Current balance €306,000 including €23,000 arrears
It was adjourned in July to give them a chance to engage but the bank had called them on a few occasions, but the phone number was no longer in service.
Costs awarded and stay for 3 months.

*Order 4  KBC Bank *
Original mortgage and 3 top ups between 2000 and 2007 for €230,000
Balance now €200,000 including €49,000 arrears
Last payment in July 2014 for €1,000 - sporadic payments before that.
The Registrar and the barrister seemed to be looking at the mortgage statement saying that there were many bounced direct debits, the first of which was in 2006. ( I would love to have stood up and asked why, if a direct debit bounced in 2006, did they give him a top up in 2007)

Costs granted. Stay for 3 months.

*Order 5 Haven Mortgages *
The first named defendant showed up in court and consented to the order. As the bank did not have evidence in court that the second name defendant had been given notice of today's hearing, the case against him was adjourned to 9 June.

The first named defendant said that the second named defendant had not been in the house since May 2009, but she had forwarded the correspondence from the bank to his solicitors so he knew that the case was being heard.

The first name defendant had consented the last time as well, but no order was granted. Although she consented to the order, she asked for a long stay as she had a 6 months old baby and would have to find accommodation. She was given a stay until the 1 August.


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## Brendan Burgess (13 Dec 2015)

*Case study 6*

Peremptory 9 June

6th time on the list. Peremptory the last time. On the first call,the bank wanted to adjourn because the borrower asked for an adjournment. The Registrar put it to 2nd call.  On the second call, the bank said that they now wanted to proceed. A PIP appeared with the borrower and tried to speak. The Registrar told him he had no right of audience.

Registrar: This is the 6th time on the list. Proceedings were issued in February 2014. The borrower sent in an SFS in July.  AIB asked for further information in October. “What took you until October?”.  Borrower: We sent in a proposal to sell the house but got no response.

“If an defendant wants and adjournment, they must file an affidavit” 

*Case study 7 *
The borrower had died, so the case was against his estate. There was no solicitor on record for the estate. When a barrister tried to speak on behalf of the estate, the Registrar told him that he had no right of audience as he was not on record.

She had made a peremptory adjournment in May so she put it back to the second call. 

The barrister for the bank was excellent on the second call and calmed the Registrar down.  There were two properties involved and both were on the market. An order for possession was not in anyone's interest and he asked for a long adjournment.  The Registrar was still annoyed but agreed to adjourn until October 2015 

*Case study 8*

The bank wanted an adjournment as "overpayments are being made" but no SFS has been received.  Peremptory against the bank. In other words, the next time they will probably be forced into seeking an order even if the borrower is paying in full. 

*Case study 9 - similar to 8*
Making "strong payments" but no SFS.  Registrar: "peremptory means peremptory" 

*Case study 10*
Ulster Bank wanted to proceed. The borrower wanted to read a statement to the court. The Registrar wasn't interested.  Last payment was in October 2013 because the borrower was abroad. The Registrar extended the time for the borrower to lodge an affidavit to 15th January, after which she will transfer it to the Judge's List. 

*Case study 11*
BoI wanted to proceed but the joint defendants were in court and wanted an adjournment.  One is bankrupt and the other is back in work now after two years of unemployment.
Registrar: I adjourned this in May and you have done nothing since. 
Borrower: I wrote to the bank but got no response. I phoned them last week and the person in the ASU said that if we paid €400 they would review matters. 
Bank: that is not on affidavit 
Registrar: Agreed but it is a difficulty for me
Registrar to the borrower: Regardless of what payment you make, this will proceed next time if the bank wants to do so.


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## Thirsty (13 Dec 2015)

Very interesting reading Brendan, couple of questions for you if you've time. 

I'm a wee it confused about timescales?  These cases were heard in the last week or so but adjournments for example are until October 2015?



> They must find the borrowers within a particular time scale to serve the papers.


Do you know what that timescale is?



> The borrower had died, so the case was against his estate.


Did you get any dates / timescale on this case?


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## Brendan Burgess (13 Dec 2015)

Hi Thirsty 

Most adjournments were to June 2016. 
One was adjourned to January 2016 as the bank wanted to repossess but the borrower claimed that the ASU had told them that they would review the case if they paid €400.
One was adjourned to February 2016 to allow the bank extended time to serve notice of the court hearing. 
One was adjourned to October 2016 as the barrister for the bank said that an extended adjournment would suit both parties.

*Serving the Civil Bill *
I don't fully understand the procedure, but it's something like this.
The bank tries to serve the bill on the borrower in person. 
When they fail to do so, they must come back into court to get the permission of the Registrar for substitute service i.e. permission to serve the bill by Registered Post or by pinning a notice on an empty house. 
I don't know how long they have to serve the Bill after issuing it, but sometimes they go into court asking for an extension.

When a case is adjourned, they must notify the borrower of the new date. One was adjourned because the bank had no evidence that they had done so. 

There is more here, but I don't fully understand it
Issue of civil bills - service of documents : S.I. No. 132 of 2009

*The claim against the estate - Case number 7 *
This was the first time I had seen such a case and it was against the "administrator ad litem". I have no idea who appointed the administrator ad litem, but the family wanted to replace him as the defendants.  A barrister stood up and said "I represent the proposed defendants..." but he was struck down very quickly by the Registrar who told him that there was no such thing as "proposed defendants". 

The case is no. 1795/2014 so I would guess that the proceedings were issued in early to mid 2014. On 21st May the Registrar had granted a peremptory adjournment because that was the 4th time it was on the list. So in October of next year, it will its 6th visit to the court. I suppose that the Registrar has a point.


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## Thirsty (13 Dec 2015)

Thanks Brendan, understand more now 

Out of interest, I looked up Administrator ad litem & found this from courts.ie... 





> It is appropriate in circumstances where a proposed plaintiff wishes to issue proceedings against the estate of a deceased person and a grant has not been taken out in that estate.


So no grant of probate in this instance, they'd need one before selling the house I would have thought, but there could be a lot more to the story.


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## esiuol (13 Dec 2015)

hello Brendan,
Do you now how many of these were family homes?


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## Brendan Burgess (13 Dec 2015)

All of the 5 repossessions were family homes. 

The deceased guy had two cases, but as he is deceased, I suppose that neither were family homes.

Wherever it was mentioned, they were family homes, as far as I can recall. 

Banks usually appoint receivers to buy to lets.

Brendan


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## Delboy (13 Dec 2015)

Is the change in attitude somehow linked into the proposed 1 yr bankruptcy law on the table currently? Or am I being too cynical


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## Gordon Gekko (13 Dec 2015)

Should someone use a solicitor for one of these hearings? One of my in-laws is likely to implode if he attends himself. The family are happy to pay a solicitor to mitigate this risk. And on that note, can anyone recommend a solicitor? Many thanks.


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## Brendan Burgess (13 Dec 2015)

Hi Gordon

In my experience a solicitor is absolutely no help in these cases unless there is some point of law to be argued.  The ones operating in these courts are pretty poor. Your relative is better off showing up on their own and telling their story. 

Make sure that they attend the court a week or so beforehand to get an idea of the procedure and the attitude of the Registrar. 

Brendan


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## Brendan Burgess (13 Dec 2015)

Delboy said:


> Is the change in attitude somehow linked into the proposed 1 yr bankruptcy law on the table currently? Or am I being too cynical



I don't see the connection at all. Two of the cases did involve bankrupts although in both cases, their joint owners were not bankrupt. 

This is not a change in approach by the banks. It's a change by the Registrar. 

Brendan


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## Bronte (14 Dec 2015)

Brendan Burgess said:


> It is very difficult for a lender to get their paperwork in order. .



I don't get this?  Surely with all the legal people working for the banks this would be second nature to them.  They are surely being paid enough !


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## Bronte (14 Dec 2015)

Brendan Burgess said:


> .
> 
> 
> *Order 4  KBC Bank *
> ...



On this, it it not also crazy that the borrower got not one top up but* three*.  I have heard of people getting more than one top ups but this is pure bad bank practice.


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## Gerry Canning (14 Dec 2015)

Brendan,

From your thread on the Dublin Registrar would it be fair to state,

In future borrowers and lenders do not come to Registrar unless they have largely exhausted all other avenues in a reasonable and proficient manner ,and can no longer expect said Registrar to rubber stamp requests.
if so , Registrar is correct ?


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## Delboy (14 Dec 2015)

Brendan Burgess said:


> I don't see the connection at all. Two of the cases did involve bankrupts although in both cases, their joint owners were not bankrupt.
> 
> This is not a change in approach by the banks. It's a change by the Registrar.
> 
> Brendan


Up to now the Registrars have played their part in the 'extend and pretend' game so as to keep repossessions to an absolute minimum. But with the new Laws coming into effect early in the new year by the looks of it, they don't need to do this anymore. Mortgage holders can go and get a quick Bankruptcy fix and in all likelihood, still hold on to the house(s).
The threat of Bankruptcy will also force the Banks hand into negotiating some sort of a deal which I believe will not be in their favour.


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## esiuol (14 Dec 2015)

Brendan Burgess said:


> All of the 5 repossessions were family homes.
> 
> The deceased guy had two cases, but as he is deceased, I suppose that neither were family homes.
> 
> ...



Thanks Brendan. Any of  those paying a meaningful amount each month?


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## demoivre (15 Dec 2015)

Brendan Burgess said:


> A peremptory adjournment is where the bank(or the borrower) is given one final adjournment. At the next hearing, they will not be given another adjournment. An order will be granted or the case will be struck out.






Brendan Burgess said:


> *Case study 6*
> 
> Peremptory 9 June
> 
> 6th time on the list. Peremptory the last time. On the first call,the bank wanted to adjourn because the borrower asked for an adjournment.





Brendan Burgess said:


> *Case study 7 *
> The borrower had died, so the case was against his estate. There was no solicitor on record for the estate. When a barrister tried to speak on behalf of the estate, the Registrar told him that he had no right of audience as he was not on record.
> 
> She had made a peremptory adjournment in May so she put it back to the second call.
> ...





Brendan Burgess said:


> *Case study 9 - similar to 8*
> Making "strong payments" but no SFS. Registrar: "peremptory means peremptory"



Except it doesn't, clearly, since she herself made two further adjournments in cases that were already peremptory !!! 

I have attended 4 county registrars courts and 3 judges courts and have found the actual court procedures very different to  FLAC's guidelines and the courts services own guidelines. I have never heard reference to an affidavit ever and any borrower or their representative were given every opportunity to say what they liked when their cases were called. It will be interesting to see how cases are dealt with in the new year, in the light of Brendan's experience on this occasion.


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## Gordon Gekko (11 Jan 2016)

I have a family member who is in front of the Dublin Registrar in March. First appearance. The house is in positive equity. Interest has always been paid. There are four mortgages on the property. Three are "performing" as they are interest only. One is not. The other three mature in October. An appearance was filed. Should he use a solicitor and will he get an adjournment? For personal reasons, he is willing to put the house on the market in September, but not before. I asked this question before, but this thread is unnerving me. I will pay for the solicitor if needs be. Many thanks.


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## Brendan Burgess (12 Jan 2016)

Hi Gordon

He does not need a solicitor.  They offer absolutely no advantage where there is no point of law being discussed. 

As it's the first appearance, he will automatically get an adjournment which will be at least until October 2016. He should tell the Registrar that he has agreed to put the house on the market in September, and ask for an adjournment until Jan 2017, to give some time for sale to go through. 

In October 2016, he can tell the Registrar that he has put the house on the market, and it will be adjourned again.

The worst outcome would be if the Registrar got narky and granted the lender an order in October. But there will be a long stay on it anyway. 

He should write to the lender and tell them that he proposes to put the house on the market in September and he should explain why - e.g. kids finishing college. He should point out that there is equity in the property, so the bank is not facing any loss. 

It's just a bit more correspondence to show that he is engaging with the lender and that they are ignoring him. (They probably won't reply to the letter.) 

The court can be intimidating, but it shouldn't be. I suggest that in February, he goes down some Thursday or Friday to the court just to see what happens and what mood the Registrar is in.

Brendan


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## Gordon Gekko (12 Jan 2016)

Brendan

You are a gentleman. Thank you. Do you think that he should file an affidavit stating this, or just verbalise it in court?

Also, does the registrar sit on specific days of the month (e.g. is it every Thursday and Friday or just specific ones)?

Many thanks.


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