Query re Repossession Procedures

G

Gordon Gekko

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Hello

A family friend has received a Civil Bill in relation to the repossession of his family home. It will go before the Registrar in March 2016. He should seek legal advice but is refusing to. I fear that he is struggling to cope with the issue. I'm trying to read up on it with a view to helping him and would appreciate a steer.

Am I right in saying:

- To avoid the risk of an order against him in March, he needs to file an Appearance, the form for which is online.

- He can then submit his defence by affidavit no less than four days before the date in March 2016.

- He doesn't have to file an affidavit and could just go to Court himself and speak.

All he wants is to sell the property in July 2016. This is for personal reasons as I understand it. From my preliminary research, it appears that getting an adjournent to facilitate his plan shouldn't be difficult?

Many thanks.
 
He will get an automatic adjournment on the first listing in court. So it won't be heard at all until the second listing which will probably be September 2016.

He doesn't really need to file an appearance. He doesn't even need to show up, but it won't do him any harm if he does show up.

If he has not sold the house by July, he can tell the Registrar that he has it on the market, and they will adjourn it.

Gordon Gekko said:
- He can then submit his defence by affidavit no less than four days before the date in March 2016.
Click to expand...

I presume he has no defence? He owes the money.

He should talk to the lender. If he agrees to do a voluntary sale, they will probably apply for an adjournment themselves.

Brendan
 
Thanks Brendan. You don't by any chance have a sense of the costs that will be levied on him by the bank if the case is heard before the County Registrar?
 
Hi Gordon

From our experience in the courts so far:

Dublin - never granted costs
Wicklow - never granted costs
Letterkenny - granted costs if the borrower didn't show up, but never granted repossessions
Cork - granted €300 costs per case.

Brendan
 
Brendan

Thanks for the reply. That is most helpful.

My sense is that he should file an Appearance, not file an affidavit, appear in Court himself in March and advise the Court that the property will be put on the market voluntarily in July.

In your view and based on your experience, is that the right approach? If he was to file an affidavit and seek to defend the case, based on my research, it would be primarily on the basis of Section 101 of the Land / Conveyancing Act (i.e. the debt will be cleared in a reasonable amount of time). The bank have also been disingenuous with regard to their efforts to contact him (e.g. claiming they've called yet no missed calls on his phone). They have also failed to address points that he has made in correspondence with them.

However, he absolutely intends to dispose of the property next summer. It is in positive equity.

Thanks again.
 
I have only seen an occasional defence filed and the Registrar dismissed all of them,as there really was no defence.

My advice comes from experience in the Registrar's hearings. Where does you friend live. Why not attend the Circuit Court in his area at the next sitting to see what their practice is?

Is he making any payments? When did he last make payments? Of hundreds of cases we have monitored, repossessions were granted in only three cases where the borrower appeared and objected - all three were in Bray and all three were richly deserved - no payments had been made for some years.

I suggest that he pays at least the interest. If he can't afford that, he should pay something every month.

He should also write a long letter to the lender or the solicitor setting out the case. This and any reply will be read by the judge.

Brendan
 
Thank you Brendan. He is paying full interest. Interestingly there has been a lot of correspondence with the bank, but they have been selective with regard to what is included in the "civil bill pack". They also claim to have been unable to reach him which isn't true. And the bank stated in writing that legal proceedings would be held off until a scheduled meeting. But the civil bill was issued. The bank just claimed that there'd been a mistake.
 
Hi Gordon

It's irritating, but he should not worry about it.

If the bank has issued the Civil Bill in error, he is facing no risk.

One of the problems is the Central Bank's targets regime. They must reach a certain percentage of sustainable solutions. They are not allowed to classify interest only as sustainable, so they are forced to issue proceedings to meet their targets.

Brendan
 
Brendan Burgess said:
I have only seen an occasional defence filed and the Registrar dismissed all of them,as there really was no defence.
Click to expand...

I have seen a few cases where an appearance was filed ie intention to defend filed but no affidavits were submitted, and the registrar moved the cases to the judges list for a hearing, even though there was no evidence of a genuine defence which, as I understand it, is a requirement of a case going to a hearing in front of a judge. These cases are ongoing. If a defendant's intention is to merely prolong matters perhaps they would be better off not filing an appearance at all and simply turn up at the county registrar's court !
 
Yes, and I have seen the County Wicklow Registrar tearing affidavits apart telling the borrowers that they had no genuine defence. The document wasn't opened to the public, but I got the impression that it was a Freeman style argument.

Brendan
 
So if he's before the registrar in March and wants to put the property on the market in July, on balance what should he do?

He is paying "interest only". There are two mortgages on the property. Only one is in arrears. The other does not mature until early 2017. The bank will not put a stop on the legal process. It is in positive equity.
 
In March, the lender will apply for a Practice Direction Adjournment. The President of the Circuit Court has ruled that they must adjourn the case at its first listing. Depending on which court it is, it will probably be adjourned for 6 months.

If he sells the house in July, at the adjournment, the lender will apply to strike out proceedings and will apply for their costs. He should show up and contest the costs as the case was brought unnecessarily.

Brendan
 
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