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.
High Court Summary Process
- Thread starter Lone Star
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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.
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)...
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?)
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
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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.
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Comment;
From experience BOI are very fast to get their judgments in.
Again as per Bronte more info would help.
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.
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.
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.
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.
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.
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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.
(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.
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.
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
R
Rebuttal
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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.
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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...
What does this mean? You're the third or so poster mentioning taking cases to Europe etc. how realistic is this?
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Asphyxia
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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.
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Asphyxia
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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.