# High Court Summary Process



## Lone Star (5 Oct 2015)

In the process of defending a summary judgement. Looking likely it will go to plenary. Th bank's grounding affidavit contains a number of exhibits: However: there is a page they are 'missing' or have 'omitted' ....or could it be a photocopying blunder?! The facility letter they have as an exhibited is missing the signature page.....is this of value to me in terms of mentioning in court? Is it missing on purpose? I know the page is missing because I have in my own files a copy of the 'missing page' an original signed by bank ( however it is not signed by me). Putting together a supplemental affidavit this week with some new details and just wondered about the value of the missing exhibit page...raise it now or wait until plenary?! I am getting legal advice also, but I'm working on the basis if I ask enough people I'll cover more ground, which may unearth an important nugget of information/advice.


----------



## Bronte (6 Oct 2015)

I think a relevant document without the signature page would be important.  We recently had a poster on here linking to a reciever whose appointment was overturned as he was not validly appointed, something to do with a seal.  All in all the document must be proven to be validly executed otherwise what's the point of signing documents.  And the court must be satisfied they are originals as well.  What does your lawyer say.


----------



## Lone Star (6 Oct 2015)

Thanks Bronte. The last legal meeting was taken up by other points and aspects and I've yet to point out the 'missing page' aspect. I'll be discussing it on Thursday when we draft a heavy supplemental affidavit. (Question is ... Raise it now in Master's Court or wait for Plenary stage)...


----------



## Bronte (6 Oct 2015)

Fair play to you Lone Star for taking this on.  Not an easy thing to do.  Hope it works out for you.  Do you want to kinda tell us what it's about without mentioning the name of the bank or location etc. (I've no clue on which courts etc, surely your solicitor is helping you with that?)


----------



## Lone Star (6 Oct 2015)

To date I've done it all solo. Judgement being sought on investment residual....bank Renaged on initial talks to split residual and be realistic with me. Recently got in touch directly with a barrister; a solicitor would have had me resigning to a judgement .. there is merit in my defence hence my perseverance and sheer reluctance to sit back and let them put a 12 year lien on my PPR. Due to sum involved it's in the High Court.


----------



## Gerry Canning (6 Oct 2015)

Lone Star.
There is a strong feeling , backed up by a lot of cases that Banks do not supply/have the appropriate documentation.As per Brontes comments quite a few receiverships are not properly/legally executed, if people knew the rules a lot of cases can be well challenged..
The problem is that without good legal advice  Banks (bully on) in the  knowledge customers (assume) all is in order from Mr Bank.
Not sure, but I would be (slow) to show my hand and therefore I would wait until hearing to raise missing page.?

Remember it is Mr Bank who has to show good grounds as to why they would get judgment.
..............
Comment;
From experience BOI are very fast to get their judgments in.
Again as per Bronte more info would help.


----------



## Lone Star (6 Oct 2015)

I'll get legal advice on Thursday Gerry regarding what stage to divulge. 

Info wise: in acute summary: an investment: bought at height of boom: persevered for several years and did not default by a cent...cutting a very long arduous story short - I had to start living a life and eventually missed two payments on the investment after tenants did a runner - the bank then said SELL and would not consider a moratorium to get arrears up to date (750 euro!! - it was an interest only mortgage). interestingly there was never any provision for repayment of capital - which in one Barrister's report on summary judgement defences is noted as a key point.  

property eventually sold - i made sure it was in great condition, left all my good furniture, lovely wooden blinds, electrics the lot etc..to maximise price. Shortfall grew as prices dropped. The discussions on residual ceased with change of personnel and so forth....bank then went legal. 

I've been fighting it ever since. had never entered a court until last year. My attitude is 'over my dead body' will they ever get a hand on my PPR. but I will still fight the judgement.


----------



## Bronte (6 Oct 2015)

This is not looking good to me Lone Star.

How is it relevant that there was no provision for repayment of capital, when the interest only loan term was up you would have to repay the capital ? You knew this when you took out the loan.  You can be angry at the bank but if your investment was sold for less than the mortgage then they can get a judgement mortgage on your home.

You asked a question about which court earlier.  Can you confirm your earlier query, is it as follows:

You have taken a High court case against the bank, about their security not being ok, you put in one affidavit, the bank presumably responded and now you're doing a new one, called a supplementary one, and you want to add a new point, about the missing signature page,  your question now is whether to bring this up before the Master, or in the Plenary stage?

The only way I can see you winning is if the banks security is somehow faulty.  We do know a lot of things weren't done correctly.  But who knows what way a judge will do things.


----------



## Lone Star (6 Oct 2015)

Bronte; the bank have taken me to court - seeking judgement. 

(the repayment of capital - is just a point I read about in a Barrister's paper on defences to summary judgement - it's not necessarily a point I am pursuing) but i need it get more information on it just in case.  (it may not be relevant) 

As i say, I'm getting legal advice - but just popped the post up there in case anyone had any other opinions. 

Don't worry too much about this thread, my main defence is much stronger. Thanks, Lone Star.


----------



## Bronte (6 Oct 2015)

Good to hear about your main defence being stronger.


----------



## Lone Star (6 Oct 2015)




----------



## 44brendan (6 Oct 2015)

Lone Star said:


> The facility letter they have as an exhibited is missing the signature page.....is this of value to me in terms of mentioning in court? Is it missing on purpose?


Lone Star this page may or may not be available to the Bank. Presumably you have requested a copy of the missing page at this stage. In terms of obtaining a Judgment it is of nuisance value only as a defense. The main Proof required to obtain a judgment is whether the funds were validly issued to you. This can be quite easily proved by the bank. frequently where documents are copied internally they reflect the file copy document rather than the original signed document which is held separately by the security section. This is the most likely explanation for the missing signature sheet. I have been involved in a number of cases where signatures were either disputed or missing on loan documents and while these have on occasion delayed issue of judgment I have yet to see a case where judgment was not obtained by the bank.


----------



## Lone Star (6 Oct 2015)

Thanks 44brendan..I realise that could be the case alright.      Why they keep pursuing though I have no idea - A judgement pursuit is only costing them more money...when they could have struck a deal with me... sure it's all a game and a gamble .. Sin é !


----------



## 44brendan (6 Oct 2015)

Lone Star said:


> sure it's all a game and a gamble


Absolutely Lone Star. I have plenty of inside experience of unnecessary legal action taken where there is patently nothing to be gained by it. Keeps the solicitors happy


----------



## Rebuttal (9 Oct 2015)

I wonder could the whole summary judgment process in Ireland and the UK be challenged under the ECHR ( right to fair trial ) ? In particular the equality of arms aspect in the initial stages of seeking summary judgment.


----------



## Lone Star (9 Oct 2015)

I'm not sure regarding equality of arms. However I did ask a barrister recently regarding fair trial/human rights .. The response was that you're heard by virtue of being able to submit for example a replying affidavit and if defence is of merit for  passing downstairs and then to plenary you have opportunity there to be heard... Popped into Master's Court today ... Lots of summaries before him...


----------



## Bronte (9 Oct 2015)

Rebuttal said:


> I wonder could the whole summary judgment process in Ireland and the UK be challenged under the ECHR ( right to fair trial ) ? In particular the equality of arms aspect in the initial stages of seeking summary judgment.



What does this mean? You're the third or so poster mentioning taking cases to Europe etc.  how realistic is this?


----------



## Asphyxia (12 Oct 2015)

Any citizen within the Member States can send off a complaint to the European Commission if they believe the Irish State has not implemented or transposed an European directive correctly ( see recent case of an Austrian citizen who complained about the Irish State allowing data from a Facebook subsiduary company transferring data of European Citizens to America without their permission ). In relation to particular private actions ( court cases ), if a matter of a European directive, regulation etc becomes something that one or both parties in the particular court action seek to rely on, a Judge can refer the matter to the European Courts seeking clarification or a determination on the matter. The ECJ will give a determination on the matter, the Judge will then implement this determination, having regard to all the circumstances of the case before him.


----------



## Sarenco (12 Oct 2015)

The Commission and ECJ have absolutely nothing to do with the ECHR. 

The idea that the summary judgment process somehow breaches human rights is, to put it mildly, far fetched.


----------



## Asphyxia (12 Oct 2015)

Sarenco said:


> The Commission and ECJ have absolutely nothing to do with the ECHR.
> 
> The idea that the summary judgment process somehow breaches human rights is, to put it mildly, far fetched.


Do not know how this post arrived here, it was a reply to Bronte question on a completely different thread . Sorry for any inconvenience, will talk to BB about same.


----------



## Asphyxia (12 Oct 2015)

I was replying to Bronte's question about taking cases to Europe, not about the ECHR directly.


----------



## Lone Star (20 Oct 2015)

Another Day at the East Wing High Court Casino! A request for a strike out of my summary judgement process....little did I know that this could lead straight to Judge Ryan's Court if bank get the strike overturned - it is to be decided upon in a month...I've been advised next time in the Master's court to ask not to have it struck out after all.... Hopefully my first ever baby doesn't decide to arrive early or it will be the High Court Maternity Wing! I might be winning a few interim battles but I want to win the war.....or maybe I should just give up and accept a judgement and get on with my life...Lone Star


----------



## Rebuttal (20 Oct 2015)

The master has no authority to strike out the summary proceedings ( order 37 Superior court rules refer ). This very matter has been ruled upon. However, the matter cannot be transferred from the Master's list to the hearing list, until the case is in *order* and ready to proceed.


----------



## Lone Star (20 Oct 2015)

He can strike it, but it's not permanent and can be overturned. I'll be looking for him to hold onto it until all is in order...


----------



## Rebuttal (20 Oct 2015)

Not in your particular circumstances, look up the case of The Governor and company of Bank of Ireland v Ian Dunne and Andrea


----------



## Lone Star (20 Oct 2015)

It will be better anyway not to be struck out. Thank you, I'll check out that case.


----------



## Lone Star (20 Oct 2015)

I wonder why he's taking 6 weeks though to read the papers....seems long..


----------



## Lone Star (20 Oct 2015)

Read it and it's very clear indeed.


----------



## Bronte (21 Oct 2015)

So you had a bad day in court yesterday and not only that you're well on in pregnancy, a heady combination.  Who asked for the strike out, would that mean your case is thrown out?  It's not clear what actually happened. I ask because others in your position would like to know how the whole East Wing Casino works !


----------



## Lone Star (21 Oct 2015)

Bronte, I stupidly put in for strike out...on advice I got...but it's unlikely to happen anyway. Past strike outs by the Master (in contested cases) were overturned.  See Rebuttal's case example above. 

Regarding yesterday I had pointed out Lots of mistakes and errors in the Bank's affidavits - probably means very little in the grand scheme of things. Time will tell and maybe I am flogging a dead horse.
My advice is that anyone heading for the Masters Court should go and spend a few mornings there and see first hand the happenings.  The law Howinever has procedure to follow and the Casino has it's place and job to do. 
A heady combination is a good description, I'm strong but had utter meltdown last night and in early hours, threw up all over the place with the stress and had to sleep with the light on, not sure how much more I can actually handle. 
Another Day of work lost .. I'm a hard worker but today I'm not fit to function, an unmeasured socio-economic impact that is happening people across the country. An interesting study for a Masters Student I'm sure.


----------



## Bronte (21 Oct 2015)

My goodness Lone Star you're having a bad time of it.  I don't think you should continue if it's causing you this much stress.  You have to think not just of the baby but of you too. 

What do you think, would you not be relieved to stop all this, to finally put an end to it?


----------



## Lone Star (21 Oct 2015)

I think the type of me is wanting Justice to Prevail and if I can avoid a 12 year lien on my house...
I want to win and not be tarred and living in fear of them coming at me for my PPR in the next 12 years. 
I'll see how things go over the next week and see what the Docs advise. Thanks


----------



## Banjaxed (3 Nov 2015)

Hi lone star.  Sorry to hear that you are going through this sickeningly worrisome time.  I have been hoping you would be letting us know how things were progressing.    We are along the same path as you just a bit further back.
Selling BTL trying to come up with solution for residual debt but just when we think we might be getting somewhere personnel change or file sent to another section in bank and we land back at the beginning.   Our PFH has equity and no doubt now that my personal circumstances have since changed (redundant since all this began) they will also slap us with a JM.
I'm sick with worry.   It's Huge strain on us as a couple and we are finding it tough going and husband went on nights to boost income ....But none of that really matters does it.

Do you believe that the banks actually call in the judgements and order a sale ?  Does it happen often 
The High court must be frightening but more than that - it must be costing an arm and a leg.  

Best of luck with the case in court next month and the baby.


----------



## Lone Star (3 Nov 2015)

Banjaxed, try not to worry but keep communicating with them and get all in writing. (Have you sold the btl?)  And as a couple try not to let it invade your relationship ( I know it's not easy) I'm living alone so it's almost easier in one sense. It's hard to know what will happen re a judgement ... All one could do is hope they don't try to enforce it. (My bank sound like they've the temerity to go after me until the end) There can be options to buy it out - an arbitrary sum touted to me was 10,000. I'm not going down that road though. I've already physically lost 130,000 and years of stress and so much missed out on. 

Yip the court stuff is hard...after last time I literally nearly cracked at thought of having to go back. 

Cost wise am representing myself so it's a day off work, diesel, tolls, parking and cost of some legal advice beforehand on an hourly basis. And their mounting legal costs which will get added into any judgement. 

Get advice: get reading and researching and remember there are people and organisations out there to help. They have different approaches though. 

I probably shouldn't have let bank bully me into selling the asset though.


----------

