Brendan Burgess
Founder
- Messages
- 53,722
I have watched hundreds of repossession cases in the Registrar's Courts and I have really been really shocked by the disorganisation and incompetence of the legal teams. (The exception is Bank of Ireland. They have fewer cases than the other lenders, but when they do seek an order for possession, their files seem to be in order, and they succeed more often than not.)
In general, where borrowers show up in the court, they have represented themselves very well. They are on top of the facts. The Registrar explains things to them. Where the borrower appears genuine, the Registrar is very polite and will almost always bend over backwards to help the borrower. If the borrower is aggressive or disrespectful or engages in phony legal arguments, the Registrar is less patient.
Borrowers are often nervous and sometimes don't express themselves very clearly. But, in a way, that seems to help them. The Registrar realises that they are vulnerable and makes allowances accordingly.
But the legal teams for the banks are so bad that they often don't get orders when they are merited, because they have made mistakes along the way. It seems a pointless expense for borrowers to pay solicitors.
Here are some examples of what I have witnessed
These are just three examples. But go down to the repossession court any day, and see for yourself. It's often farcical.
Example 1
A solicitor made a half-hearted appeal for the order not to be granted. It was an uphill case as there was no defence at all. The borrower had made promises but had made no payments. The Registrar decided to grant an order. After this decision is made, the barrister for the lender must take the Registrar through the paperwork, and often there is a problem and the order is not granted. While the barrister for the bank and the Registrar were going through the paperwork, the solicitor for the borrower was texting and paying no attention to the proceedings. When the order was officially granted, the Registrar looked to the solicitor for the borrower and said that she proposed giving a 3 month stay. The solicitor was still on the phone and did not hear the Registrar.
I am sure that if the borrower had been present, they would have got a much longer stay of execution.
Example 2 Lender sends an affidavit to the borrower the day before the court case. The Judge has no file.
I have documented another case here where the lender probably would have got an order for possession if they had been organised enough.
Example 3 Landlord vs. tenant
This was a case in the Dublin Circuit Court yesterday, which prompted me to write this post.
The barrister for the landlord set out the case very well.
In August 2015, there was €4,802 of rent arrears.
They had a hearing in the PRTB on 23 October 2015.
In November 2015, the PRTB issued its adjudication in favour of the landlord.
The tenant was in court,representing himself. I wondered why he bothered. This was a clear-cut case. A landlord finding it impossible to get rid of difficult tenant refusing to pay the rent. What could he possibly have to say?
The Judge was surprisingly polite with the tenant. I would not have been. She summarised what the Barrister had said very well and asked if he had anything to say.
He said that he had withheld the €4,000 rent because there were repairs outstanding.The Registrar told him that this was not an excuse to withhold rent. He could have gone to the PRTB himself with a complaint.
But then the tenant said that he was not well. That he and his daughter were ill. But he had paid "every penny that was due". He had his bank statements with him to prove it. The barrister for the landlord tried to intervene, but the Judge told the barrister to let the tenant speak.
Then the judge turned to the barrister and asked him this was true.
And the barrister said "I was going to flag it up that payments had been made."
Judge: But you did not flag it up. You concluded without saying anything.
Barrister: I was going to open Exhibits 5 and 6.
Judge reads out the affidavit "The respondent has failed to pay any arrears and has failed to pay the rent and a further €15,900 is due. " This was a sword affidavit and it's not true.
Barrister: All I can do is apologise . I was naive.
Judge: "Naive? What is in Exhibit 5 and 6?". Reads them to herself. "Where do these affidavits refer to the rent having been paid. Are you attended by a solicitor?"
Barrister: "Yes". The solicitor was there, but didn't get involved.
Judge: "How was this affidavit drafted and sworn . It was, "inaccurate" , that is the kindest word I can use. What if the tenant had not shown up in court today?"
Barrister: "I was naive"
Judge: "Naive???. I am striking out these proceedings. "
To the tenant: They will probably reissue the proceedings. They might not try to file inaccurate affidavits, but do make sure you show up in court."
Comment
I can't figure out this at all. I suppose a landlord might make a false affidavit in the hope of getting an order for eviction. But the solicitor should have stopped her. And even if the solicitor had not stopped her, the barrister should not have proceeded on the basis of an affidavit he knew to be incorrect.
I wonder were they just assuming that the tenant would not appear in court?
I was shocked, but the Judge also seemed to be shocked.
The landlord was not in court, so she won't know what went on, except that she will get a big bill for legal costs and will still have a tenant she doesn't want.
In general, where borrowers show up in the court, they have represented themselves very well. They are on top of the facts. The Registrar explains things to them. Where the borrower appears genuine, the Registrar is very polite and will almost always bend over backwards to help the borrower. If the borrower is aggressive or disrespectful or engages in phony legal arguments, the Registrar is less patient.
Borrowers are often nervous and sometimes don't express themselves very clearly. But, in a way, that seems to help them. The Registrar realises that they are vulnerable and makes allowances accordingly.
But the legal teams for the banks are so bad that they often don't get orders when they are merited, because they have made mistakes along the way. It seems a pointless expense for borrowers to pay solicitors.
Here are some examples of what I have witnessed
These are just three examples. But go down to the repossession court any day, and see for yourself. It's often farcical.
Example 1
A solicitor made a half-hearted appeal for the order not to be granted. It was an uphill case as there was no defence at all. The borrower had made promises but had made no payments. The Registrar decided to grant an order. After this decision is made, the barrister for the lender must take the Registrar through the paperwork, and often there is a problem and the order is not granted. While the barrister for the bank and the Registrar were going through the paperwork, the solicitor for the borrower was texting and paying no attention to the proceedings. When the order was officially granted, the Registrar looked to the solicitor for the borrower and said that she proposed giving a 3 month stay. The solicitor was still on the phone and did not hear the Registrar.
I am sure that if the borrower had been present, they would have got a much longer stay of execution.
Example 2 Lender sends an affidavit to the borrower the day before the court case. The Judge has no file.
I have documented another case here where the lender probably would have got an order for possession if they had been organised enough.
Example 3 Landlord vs. tenant
This was a case in the Dublin Circuit Court yesterday, which prompted me to write this post.
The barrister for the landlord set out the case very well.
In August 2015, there was €4,802 of rent arrears.
They had a hearing in the PRTB on 23 October 2015.
In November 2015, the PRTB issued its adjudication in favour of the landlord.
- The arrears were correct and due
- The tenant should vacate the property
- The tenant should continue to pay the rent of €1,325 per month until he vacated it.
The tenant was in court,representing himself. I wondered why he bothered. This was a clear-cut case. A landlord finding it impossible to get rid of difficult tenant refusing to pay the rent. What could he possibly have to say?
The Judge was surprisingly polite with the tenant. I would not have been. She summarised what the Barrister had said very well and asked if he had anything to say.
He said that he had withheld the €4,000 rent because there were repairs outstanding.The Registrar told him that this was not an excuse to withhold rent. He could have gone to the PRTB himself with a complaint.
But then the tenant said that he was not well. That he and his daughter were ill. But he had paid "every penny that was due". He had his bank statements with him to prove it. The barrister for the landlord tried to intervene, but the Judge told the barrister to let the tenant speak.
Then the judge turned to the barrister and asked him this was true.
And the barrister said "I was going to flag it up that payments had been made."
Judge: But you did not flag it up. You concluded without saying anything.
Barrister: I was going to open Exhibits 5 and 6.
Judge reads out the affidavit "The respondent has failed to pay any arrears and has failed to pay the rent and a further €15,900 is due. " This was a sword affidavit and it's not true.
Barrister: All I can do is apologise . I was naive.
Judge: "Naive? What is in Exhibit 5 and 6?". Reads them to herself. "Where do these affidavits refer to the rent having been paid. Are you attended by a solicitor?"
Barrister: "Yes". The solicitor was there, but didn't get involved.
Judge: "How was this affidavit drafted and sworn . It was, "inaccurate" , that is the kindest word I can use. What if the tenant had not shown up in court today?"
Barrister: "I was naive"
Judge: "Naive???. I am striking out these proceedings. "
To the tenant: They will probably reissue the proceedings. They might not try to file inaccurate affidavits, but do make sure you show up in court."
Comment
I can't figure out this at all. I suppose a landlord might make a false affidavit in the hope of getting an order for eviction. But the solicitor should have stopped her. And even if the solicitor had not stopped her, the barrister should not have proceeded on the basis of an affidavit he knew to be incorrect.
I wonder were they just assuming that the tenant would not appear in court?
I was shocked, but the Judge also seemed to be shocked.
The landlord was not in court, so she won't know what went on, except that she will get a big bill for legal costs and will still have a tenant she doesn't want.
Last edited:
Can I ask you your background? Had you spoken in a court before? Are you used to making presentations?