KBC barrister to Registrar: You have no authority to refuse my application for a possession order

There was an interesting case in the Dublin County Registrar's Court today.

The barrister for KBC said that when this case was in court in November, the borrower agreed to submit an SFS and to pay €30k. He did both - paying the €30k on 8th November.

Prior to that the last payment was €200 in May 2014. The barrister said that no payment was made since 8th November.

There was €50k arrears and €222k balance on the account.

The barrister told the Registrar that as he had his papers in order and as there had been no legal issue that Justice Dunne had ruled that the Registrar had no right to refuse his application for an order for possession.

The borrower had a solicitor and barrister in court, but as they had not gone on record, the Registrar would not allow them to speak.

The Registrar did not want to borrower to be disadvantaged by the lack of a solicitor, so she put the case back until tomorrow.

The borrower then said he had paid €1,500 on 18th Dec and €1,500 on 12th January, and had receipts from KBC to prove it.

Brendan Burgess said:

There was an interesting case in the Dublin County Registrar's Court today.

The barrister for KBC said that when this case was in court in November, the borrower agreed to submit an SFS and to pay €30k. He did both - paying the €30k on 8th November.

Prior to that the last payment was €200 in May 2014. The barrister said that no payment was made since 8th November.

There was €50k arrears and €222k balance on the account.

The barrister told the Registrar that as he had his papers in order and as there had been no legal issue that Justice Dunne had ruled that the Registrar had no right to refuse his application for an order for possession.

The borrower had a solicitor and barrister in court, but as they had not gone on record, the Registrar would not allow them to speak.

The Registrar did not want to borrower to be disadvantaged by the lack of a solicitor, so she put the case back until tomorrow.

The borrower then said he had paid €1,500 on 18th Dec and €1,500 on 12th January, and had receipts from KBC to prove it.

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Barrister for borrower would need to ask the court to apply the proportionality test, particularly when borrowers is making relatively substantial monthly payments with regard to the loan size.

I was back today, when this guy had his legal representatives in place.

The barrister for KBC was excellent. (Most of the legal profession in the Registrar's Court are poor.)

He started by drawing the Registrar's attention to a a claim that the borrower had made at a previous sitting that he had not been serviced with some document. But he had sworn an affidavit in which he referred to it. So the barrister suggested paying less attention to the borrower's claims that one normally would.

The barrister had checked with KBC. The borrower had made two payments off another account with KBC not against this account. The borrower blamed KBC but it was the borrower who had given KBC the account number.

The barrister concluded that there was no argument against granting an order for possession.

The barrister for the borrower argued that the borrower had shown a willingness to pay. Under the circumstances, under Start Mortgages vs. Gunn, the Registrar was obliged to adjourn it if there is a reasonable chance that they might come to an agreement.

The Registrar replied that the borrower had his chance. He had not paid anything at all between May 2014 and November 2017. Adjourning the proceedings would not be right.

The borrower's barrister argued that the borrower was trying to negotiate a deal with KBC and if she granted an order, KBC would not be inclined to do a deal.

KBC's barrister argued that there would be no difference in practice between granting an order now with a 6 month stay, and giving an adjournment for six months which would just lead to an order in 6 months with no stay. In fact, granting an order now would save the borrower legal costs.

So she granted an order for possession. The barrister asked for a 6 months stay and was granted it. (This struck me as odd - The Registrar regularly grants much longer stays if asked.)

She ordered KBC to reverse any legal fees already charged since proceedings were issued. But she granted KBC their costs + reserved costs.

Brendan