# Report on today's Cork repossession court



## Brendan Burgess (29 Jul 2015)

Séamus Coffey has another excellent report on the carry on in today's repossession court in Cork.

Here is a summary of the 96 cases. There was no repossession where the borrower showed up and contested it.

o the summary of the 95 cases is:

9 couldn’t proceed because service hadn’t been completed
10 orders for possession were granted
8 cases were struck out
58 cases were adjourned by the lenders
10 cases were adjourned by the County Registrar

Last April, one couple got an adjournment although they had paid nothing at all since 2009. At today's hearing, the bank again sought a repossession order, but the couple sought and were granted an adjournment. The couple have paid €600 per month, although €1,100 is due. They have not engaged with the bank.  They have arrears of €77k on a mortgage of €346k . They initially borrowed €317k in 2006.  The Registrar adjourned it again.


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## Andy836 (29 Jul 2015)

That's a joke Brendan. There's no way anyone, in their wildest dreams, could think that mortgage is sustainable. Between these decisions and those of the criminal courts (guys given suspended sentences with 100 previous convictions) in dublin there can't be any faith in the judiciary.


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## Sarenco (29 Jul 2015)

These reports are really shocking.

At this stage, I think you would have to conclude that this approach is starting to seriously erode confidence in the administration of justice, never mind exacerbating the financial consequences of the property market crash.


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## Delboy (29 Jul 2015)

Never mind not paying your next water charges bill because no one else seems to be, why bother paying your mortgage when you could play the system like this. You don't even have to really try hard, the Registrar will string it along forever and a day...just pay a few quid every now and then and be sure to show up for every 2nd or so court hearing. 

How can the Registrars have such powers to be able to do this time and time again, nationwide


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## Sophrosyne (29 Jul 2015)

Brendan Burgess said:


> 58 cases were adjourned by the lenders


 
Almost 62% adjourned by the _lenders_. Did the article say why?


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## mathepac (30 Jul 2015)

Sarenco said:


> These reports are really shocking.
> 
> At this stage, I think you would have to conclude that this approach is starting to seriously erode confidence in the administration of justice, never mind exacerbating the financial consequences of the property market crash.



I have to disagree. People losing their homes to bankers who through greed and ignoring laws and guidelines (their own) created the circumstances leading to their customers' inability to repay their debts has nothing whatsoever to do with justice. It may have repercussions for the legal system but that has nothing got to do with justice either. PTSB anyone?

Note the word "homes" in my post, not "properties".


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## Brendan Burgess (30 Jul 2015)

Sophrosyne said:


> Almost 62% adjourned by the _lenders_. Did the article say why?



Hi Sop

He hasn't given this analysis in his report which you can read in full here: 
http://economic-incentives.blogspot.ie/2015/07/repossession-cases-adjourned-in-april_29.html

From my experience, the reasons for adjournments by the lender are as follows:

1) Practice Direction Adjournments - All cases must be adjourned on their first appearance by direction of the President of the Circuit Court 
2) An alternative repayment arrangement has been entered into and they want to see how it goes - at the next sitting, the bank will either proceed or have it struck out 
3) The borrower has made contact with the lender since the court date was set and they are now awaiting or assessing the SFS.
4) Paperwork not ready - waiting on a certificate of rateable valuation from the Valuation Office 
5) Various others - the borrower has applied for a PIA; the case is affected by a High Court judgement and they are waiting for Counsel's opinion on how to proceed; etc.


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## Sarenco (30 Jul 2015)

Hi mathepac

The administration of justice refers to the process and structure which allows conflicts between parties to be settled by a body dedicated to that purpose. It is not a value judgment on lender practices or behaviour.

In my opinion, the continual adjournment of uncontested applications for possession orders is starting to erode confidence in the administration of our justice system.  Bear in mind that in some cases, the property will actually have been abandoned and will not be available to provide accommodation for anybody.

I think you would also have to question whether the typical stays being granted on possession orders are appropriate. In one reported case, the borrower actually consented to the possession order and argued for the stay to be reduced from three months to one month!

I don't think anybody is suggesting that borrowers shouldn't be given sufficient time to try and negotiate an alternative sustainable arrangement with their lender.  However, where this is not possible then surely it is in everybody's interest to bring matters to a conclusion without undue delay?

As regards your final comment, I would have thought that every occupied residential property is somebody's home, regardless of whose name is on the deeds.


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## demoivre (30 Jul 2015)

Andy836 said:


> That's a joke Brendan. There's no way anyone, in their wildest dreams, could think that mortgage is sustainable.



I think it is, and I'm not dreaming.


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## demoivre (30 Jul 2015)

Sarenco said:


> I don't think anybody is suggesting that borrowers shouldn't be given sufficient time to try and negotiate an alternative sustainable arrangement with their lender.



Banks unilaterally  decide what's sustainable, which is unfair. The recent the passing by both the Dáil and Seanad Eireann of the Personal Insolvency (Amendment) Bill 2014 might help to redress this issue where a borrower seeks a PIA to make a mortgage sustainable. .


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## demoivre (30 Jul 2015)

Brendan Burgess said:


> Séamus Coffey has another excellent report on the carry on in today's repossession court in Cork.
> 
> Here is a summary of the 96 cases. There was no repossession where the borrower showed up and contested it.
> 
> ...



Of the 95 cases I only see potential " carry on " in 10 cases, the last 10 referred to above.


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## Sarenco (30 Jul 2015)

demoivre said:


> Banks unilaterally  decide what's sustainable, which is unfair. The recent the passing by both the Dáil and Seanad Eireann of the Personal Insolvency (Amendment) Bill 2014 might help to redress this issue where a borrower seeks a PIA to make a mortgage sustainable. .


 
Hi demoivre

I don't think we should stray into a discussion on this thread on the adequacy or otherwise of the Central Bank's guidelines on sustainable mortgage solutions or the wisdom of the recent amendments to the personal insolvency legislation.

My issue is with the fact that we are seeing on-going reports of uncontested applications being adjourned repeatedly without any apparent justification.  When a party to a dispute is in a position to proceed with an application, and no objection is raised by the other party, then surely the process should facilitate the hearing of that application without undue delay.


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## Sophrosyne (30 Jul 2015)

demoivre said:


> Of the 95 cases I only see potential " carry on " in 10 cases, the last 10 referred to above.


.

Agreed. Just a little over 10%.


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## demoivre (30 Jul 2015)

Sarenco said:


> Hi demoivre
> My issue is with the fact that we are seeing on-going reports of uncontested applications being adjourned repeatedly without any apparent justification.  When a party to a dispute is in a position to proceed with an application, and no objection is raised by the other party, then surely the process should facilitate the hearing of that application without undue delay.



That happened on *at most *10 occasions in the above sample, if at all. A cursory analysis of the Cork numbers show that of the 28 cases that the banks wanted to/could proceed with , they were granted possession orders in 10 cases ! I would be confident in saying that the 8 cases struck out were at the behest of the banks ! So in effect of the  20 cases that the banks wanted to/ could proceed with they succeeded in getting 10 possession orders.


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## Sarenco (30 Jul 2015)

I'm not sure I understand your point.  Are you arguing that there is an acceptable number of uncontested applications that could or should be adjourned in any given session?

I can't see any good reason why a Registrar would adjourn a hearing of any application where one party wants to proceed and the other party has not raised any objection to proceeding.  What's to be gained by adjourning the hearing?  

Whatever about adjourning hearing an uncontested application on one occasion what possible justification could there be for repeatedly adjourning such hearings?

Of the 10 possession orders that were granted, it's worth noting that the report suggests that none were contested and 5 of the properties were actually vacant with no mortgage payments being received since 2011.


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## Andy836 (30 Jul 2015)

demoivre said:


> That happened on *at most *10 occasions in the above sample, if at all. A cursory analysis of the Cork numbers show that of the 28 cases that the banks wanted to/could proceed with , they were granted possession orders in 10 cases ! I would be confident in saying that the 8 cases struck out were at the behest of the banks ! So in effect of the  20 cases that the banks wanted to/ could proceed with they succeeded in getting 10 possession orders.



Why these 10 cases and not the other 10 cases? Why couldn't the Banks get orders for possession granted in all 20 cases? 
The story unfolding in the courts is that the registrars are extremely happy to uphold a Borrower's rights under a facility letter but aren't willing to uphold a Lender's rights without undue delays.
This isn't a lottery. If the Bank should've been allowed the 20 possession orders then they should've been given them.
By delaying them their rights, they are undermining the integrity of mortgage documents.


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## demoivre (30 Jul 2015)

Sarenco said:


> I'm not sure I understand your point. Are you arguing that there is an acceptable number of uncontested applications that could or should be adjourned in any given session?
> 
> I can't see any good reason why a Registrar would adjourn a hearing of any application where one party wants to proceed and the other party has not raised any objection to proceeding. What's to be gained by adjourning the hearing?
> 
> Whatever about adjourning hearing an uncontested application on one occasion what possible justification could there be for repeatedly adjourning such hearings?



Where is the evidence of this ? None of the 10 adjournments in Cork were uncontested ( The banks didn't want to proceed with 58 cases so that's not the court or the borrower "carrying on" ). All I'm saying is that the notion that there is "carry on " in the courts or mass uncontested adjournments is not supported by the Cork numbers, at all !


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## demoivre (30 Jul 2015)

Andy836 said:


> Why these 10 cases and not the other 10 cases? Why couldn't the Banks get orders for possession granted in all 20 cases?



Because orders weren't granted at this sitting doesn't mean they won't be granted at the next one!


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## Sophrosyne (30 Jul 2015)

I note in case 2 of the possession orders granted, that the borrower was granted a mortgage of almost 11 times his/her base salary.


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## Andy836 (30 Jul 2015)

demoivre said:


> Because orders weren't granted at this sitting doesn't mean they won't be granted at the next one!



And what's the justification for the delay?


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## demoivre (31 Jul 2015)

Andy836 said:


> And what's the justification for the delay?



To give borrowers every opportunity to rescue the situation. Giving some banker, who gave out a 100% mortgage that was 5 times salary over 35 years, gave a 5 year fixed rate because a variable rate would not pass a stress test, got high fives from the Central Bank for doing this, should not be given speedy possession orders imo.


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## Delboy (31 Jul 2015)

demoivre said:


> To give borrowers every opportunity to rescue the situation. Giving some banker, who gave out a 100% mortgage that was 5 times salary over 35 years, gave a 5 year fixed rate because a variable rate would not pass a stress test, got high fives from the Central Bank for doing this, should not be given speedy possession orders imo.


And the poor auld innocent borrower, who just happened to be walking by the Bank when they were lassoed in and forced to sign up to a huge mortgage. After doctoring their payslips to make bonuses/expenses look like basic salary and building in rent-a-room into their repayments calcs.

Takes 2 to tango but the ongoing arrears debacle is showing there's only 1 winner!


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## Sarenco (31 Jul 2015)

demoivre said:


> To give borrowers every opportunity to rescue the situation.


 
Fair enough but bear in mind that proceedings cannot be initiated until the borrower has exited the lengthy MARP process and the first appearance is automatically adjourned pursuant to a Circuit Court practice direction.  In other words, a defaulting borrower will already have been given ample time to agree a restructured, sustainable arrangement with their lender.


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## Sophrosyne (31 Jul 2015)

I note that in case 7 of the cases adjourned by the County Registrar, that “payments have regularly and recently been made.

Tenants of the property had representation in court. Wish to stay in the property. Offered to pay rent directly to the bank.

Noted from previous hearing (when bank wished to adjourn):

Adjourned as per the practice direction.”


In case 8, “Borrowers legal representative has written to the bank six times without reply. Response that bank has replied “today”.

No payments being made. Profound financial difficulties.

Has found a buyer for the property.

Noted from previous hearing (when bank wished to adjourn):

Adjourned as per the practice direction.

Some engagement from borrower; has proposed sale of property.”

Surely, these adjournments were justified.


Of the 10 cases adjourned by the County Registrar, previous adjournments were requested by the banks, rather than the borrower, in 5 of those cases.


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## Descart (31 Jul 2015)

Delboy, sorry to burst your bubble but:

The doctoring of payslips / mortgage applications was also being perpetrated by Bank employees in order to achieve their bonuses ( usually with managements knowledge ). Without being too specific read this indo's piece:


*Ex-bank worker who forged documents avoids jail*
[broken link removed]
* Twitter*
Published 13/12/2014 | 02:30


"A former bank official who pleaded guilty to forging documents for mortgages told detectives everybody was doing it, and those who met their targets were treated like heroes."

Delboy,

"Ex Turpi causa non oritor actio" springs to mind." From a dishonourable cause an action does not arise." I wonder how many borrowers are indeed victims of fraudulent misrepresentation, or mortgage fraud, on the part of the banks, an interesting topic for investigation and discussion, don't you think.


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## mf1 (31 Jul 2015)

"I wonder how many borrowers are indeed victims of fraudulent misrepresentation on the part of the banks, an interesting topic for investigation and discussion, don't you think."

I have a problem with this statement.  

I agree that there was far too much reckless lending/ borrowing going on, but someone who freely borrows more than they can ever , possibly repay is not a victim of fraudulent misrepresentation. They may be victims of the downturn in the economy but they did sign up for the loans. 

I have a very old fashioned idea of not borrowing more than I can afford to repay. Did too many people not actually understand the basic economics of mortgages?

mf


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## Asphyxia (31 Jul 2015)

Descart,

Spot on.


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## Gerry Canning (31 Jul 2015)

mf1.

With you on borrowing what you can afford.

Fraudulent misrepresentation , is too strong , but there is little doubt that too many Bank officials got the financially naiive to believe the hype , so betwixt and between lender and borrower they  self -deluded and self -convinced.

There is no doubt that Banks (primed) their generally honest staff into a frenzy of lend ,lend ,lend ,and a % of said staff connived to get deals over the line eg signed some stuff.The staff were helped by intoxicated borrowers?

On Repo cases.

I wonder if Banks paperwork/title  etc was OK, would cases be adjourned so much?

It was reported some time back that 18% of mortgages had poor paperwork that would make enforcement/repo impossible. 
..


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## Sophrosyne (31 Jul 2015)

There is no excuse for fraud by either borrower or bank.

However, I think it says something of banking ethos at the time in that growth and targets prevailed over common sense.

Previously, people (and there were always some) who tried to borrow above their means were simply refused.

Therefore, it was banks rather than borrowers, which changed the culture.


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## Descart (31 Jul 2015)

Now MF1,

Let us look at the settled law in Ireland in relation to Fraudulent misrepresentation. In relation to contracts; the effect of a misrepresentation is to make it voidable by the injured party who can then choose (subject to some qualifications) whether to set it aside and treat it as if it had never been made (this is called rescission) or to continue with it. The injured party can claim damages and a Judge may consider the actions of the bank in relation to the matter to be so unconscionable as to render the contract unenforceable, or to award damages that would effectively write off the mortgage in it's entirety.



The BSkyB v EDS case in which judgment was given on 26 January 2010 is a useful reminder of the consequences of making a fraudulent misrepresentation. The judge found that EDS had made fraudulent misrepresentations as to its ability to deliver a project within a certain timetable and in particular that it had carried out a proper analysis to enable it to make this statement. The judge also found that it was a result of these misrepresentations that BSkyB had been induced to enter into the contract with EDS. The damages that could be payable as a result have been estimated at £200 million or more. There was a limit of liability in the contract to £30 million but both parties have accepted that such a limit is not effective to limit liability for fraudulent misrepresentation.

Another plus, so as to speak for the borrower, is that the statute of limitations does not apply in it's normal sense. The injured party has 6 years to instigate a legal action from the time they become aware of the fraudulent misrepresentation.

The fraudulent misrepresentation would have been instigated by the employee of the bank against the bank. The injured party in this case, however, would not be the bank, but in fact the borrower, as it would be argued that the offence of fraudulent misrepresentation by the employee would be deemed to have been committed by the body corporate. In any court case it could also be argued that the bank itself was in breach of section 16 European Commission ( licensing and supervision of credit institutions ) 1992. a breach of which, can lead to imprisonment for up to 6 months. ( see Supreme Court ruling BCM Hanby Wallace v KBC bank )

*FBI Reports 80% of Mortgage Fraud Committed by Lenders*

* When most people think of mortgage fraud*, they think of a clever borrower conning an unwitting banker into extending him a loan he cannot afford. But this isn’t really how fraud usually works in the mortgage business. According to the FBI, 80% of mortgage fraud is committed by lenders.


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## Sophrosyne (31 Jul 2015)

Just to get back to the repossessions, the Cork report shows that of the 95 cases:

58 cases were adjourned by the lenders
10 orders for possession were granted
10 cases were adjourned by the County Registrar - of those, 5 were previously adjourned because the _bank_ did not wish to proceed.
9 couldn’t proceed because service hadn’t been completed
8 cases were struck out.
Therefore, I cannot see evidence of mass unjustified repeat adjournments by the County Registrar on behalf of the borrower.


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## Brendan Burgess (2 Aug 2015)

Séamus has updated the thread for the hearings the following day: 

*UPDATE #2:* The last hearing before the summer break took place on July 30th. Hearings will recommence in October!  There were 87 cases listed yesterday. The outcomes were:


75 adjournments
63 adjourned by the lenders
12 adjourned by the (visiting) County Registrar

6 cases were struck out
6 orders for possession were granted.
There were 18 cases where the lenders wished to proceed with their application for an order for possession.  These are summarised in the table below.  They are divided between cases where the borrower was absent and cases where the borrower was present and/or represented.

It can be seen that orders were only granted against borrowers who were absent.  All borrowers who were presented or represented in court had their cases adjourned.  There were two cases adjourned where the lenders wished to proceed in spite of the borrower being absent.


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## Bronte (3 Aug 2015)

Are the courts closed for two months.  In this day and age they shouldn't close at all.


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## Brendan Burgess (3 Aug 2015)

I am not sure if it's two months.

Here are the sitting dates for the Circuit Courts.

[broken link removed]

They are closed for August, but some seem to be sitting in September. 

Brendan


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## Bronte (3 Aug 2015)

No business in Ireland closes for a month, why do the courts.  I believe they also close at other times like Easter and Christmas.


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## Descart (12 Aug 2015)

Because they can, and who is going to stop them, separation of powers and all that jazz.


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## Mrs Vimes (12 Aug 2015)

Bronte said:


> No business in Ireland closes for a month, why do the courts.  I believe they also close at other times like Easter and Christmas.



It's hard enough to schedule courts during regular sittings, if you had to work around most of the clients, solicitors, barristers and judges taking 2 weeks holidays as well, it would be even worse. At present people who work in the Courts generally only take holidays in August as they know they are unlikely to have a case which will need adjourning then (unlikely as they don't actually fully close).

I am aware of a case which was scheduled to be heard on the first day of an appeals session (a Tuesday). The Judge wouldn't hear a case on the first day as he would only deal with pleas. The Garda wasn't available on the Wednesday. The barrister was at a different court on the Thursday and the client was abroad on the Friday. Result - 6 month adjournment to the next sitting. Multiply that by the most popular month for holidays!


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## Descart (12 Aug 2015)

Welcome to Ireland


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