Why are possession cases held in public?

[Brendan Burgess]

I understand that justice should be administered publicly in a democracy and that it is a requirement of our constitution.

But family cases are held in camera.

I have been attending possession hearings and where the borrowers show up, there are often deeply personal issues discussed in public. Family break up, job loss, illness, etc.

Only around 20% of the borrowers actually show up in court. It's hugely beneficial to them to do so. The Registrar rarely makes an order against them if they show. Some registrars grant costs where the borrower does not appear, but refuses them where the borrower does appear.

There were photographers outside the court in Bray yesterday because there was a case listed against Gráinne Seoige and her husband. Had she wanted to appear in person, she would have been hounded by journalists and photographers.

As it happens, the case made the front page story this morning in three of the tabloids.

But it's not just keeping her affairs private. Ordinary private people had to stand up and explain how tough life was and how they had lost their job and what efforts they were making to keep their job. And, of course, they had to sit in court for hours waiting for their case to be called.

There must be a better way.

 

[44brendan]

Yes I agree that those defending a repossession case are exposing many personal type information publically. However it is far more harrowing for rape/assault victims who have to give even more intimate evidence in court. Admittedly these are criminal rather than civil matters but generally re-possessions evidence/names rarely make the newspapers. Exceptions would be cases involving celebrities. The difficulty with holding cases/evidence "in camera" is where the line is drawn. i.e. Could I bear to see my daughter stand in the witness box giving intimate evidence such as that recent multiple rape case.?
Family law cases by their very nature must be held "in camera". These appear to be the only exception. Perhaps there should be others, but I'm not sure whether this would in some way undermine the current public aspect of the legal system.

 

[Brendan Burgess]

I think that civil matters and criminal matters are very different.

I agree it's harrowing for a rape victim and also for an innocent person who is charged with a crime to appear in public.

These are civil matters. Although I am not sure whether that makes them more private or less private? I see no advantage in hearing a repossession case in public other than the general philosophical point that justice must be administered in public.

Could they be held in public, but with a barring order on the reporting of the cases?

 

[Gerry Canning]

Maybe it is fair they are public.
Often-times the Court date has the effect of forcing a workable solution with the lender.
Without the public face maybe more people would stay ostrich like and that helps no-one.
Other than celebrities ,the press won,t publish names etc.
Can well be a good thing to at least force/get things in the open and indeed get towards closure.
It also makes leg-lifters realise their turn is coming.
I do understand that for the genuine people it is terrible to have your misfortune watched in public.

I can,t see a better way than the one we work.

 

[Brendan Burgess]

Often-times the Court date has the effect of forcing a workable solution with the lender.

Good point.

I thought that holding them in private might encourage more people to attend court and tell their story. But maybe if they were held in private, even more people would default, as there would be no public penalty.

 

[elcato]

A friend of mine in the debt collection business used to always love getting 'celebrities' debts as they are very collectable given any adverse publicity.

 

[WizardDr]

Just a few comments. The first would be that the process is for a recovery of a debt and happens to involve an asset - the residence. If this were not a public process we would not get to hear of some of the bad practices of some of the lenders. From the work of Mr Burgess above, one can see that in the Circuit Court at any rate - the Registrars seem to be acutely aware of the distress. On a different level, the often criticised Master of the High Court makes a valid point that the Bankers Evidence Act 1879 in fact gives banks an easier route through the rules of evidence and yet we have seen serious short cuts taken by some banks - I witnessed the outrageous behaviour of Dankse Bank and the Master was highly critical.

So that raises the second issue - legal representation and this would not generally be covered by Legal Aid unless you have disposable income of less than €18,000. This would of course preclude many who may have income above that level but not sufficient to pay the mortgage. I would change the rules of access to Barristers. Currently the ancient rules means that even the limited 'direct access' is limited to professionals provided they are not taking a legal case. So every Barrister has to be 'instructed' by a Solicitor. This at the very least doubles costs and may be totally unnecessary. This could be changed immediately and as we may not know there are significant Barristers with very low incomes - but there are. The Department of Justice are currently 'examining' a situation of improving access. This is one of these 'industry' blockages where the Princes of the Profession see it as the thin edge of wedge and fight tooth and nail any change to anything. Others would see it as simply taking the Conductor off the Bus - even Dublin Bus achieved that. This could well become an issue for this site to fight for after the success of the variable rate matter. Once the media get excited by the case they Government will act. [Would somebody tell Charlie Weston - he gets these matters.]

The third issue is that appearing in Court is a frightening prospect for people who would not have even had an appearance for anything else, but addressing point two could mean significant availability of representation at reasonable rates and crucially up the game for Bankers, book purchasers and servicers who are beginning to see legal action as easier now that property prices have closed the negative equity gap which means the balance of cost has moved back on the impoverished owner. [Just look at Bank of Ireland Annual Report - significant reduction in the NE gap].

This raises the fourth issue which is the quality of thinking at the heart of Government and the Central Bank who arrive significantly late with poor execution strategies leaving many of us really scratching the head. I simply cannot understand - unless it is deliberate and it may well be - how matters likes billions of mortgages get bought over by Private Equity and it takes seven years for the legislation to make the servicers and the purchasers of these books subject to the codes- sold at knockdown rates as the market would never recover ever again.

[Note to members of the Inquisition - this is not a comment on property speculation, which, if we had discussed it years ago may have revealed valuable insights into what was going to happen.]

 

[Harold]

I know this is an old thread but interesting, I now have two experiences of court repossession process. Back in the very early nineties when we were very young (21) newly wed with babe in arms and a partner self employed in construction.

With our very first mortgage we ran into arrears (only a 3 or 4 month period) bank automatically issued a summons this was in the UK by the way.

It was simple, Date given to attend city circuit court waited in a corredor out side several rooms containing several judges I assumed. Lots of people were there each called by name when a room became available did not know what the reason was for each of the waiting people only that it was also the small claims court so money related.

Entered room containing judge on raised platform at the end of a long table with chairs each side.

Bank official on one side us on the other. no solicitors or baristers present.

Basic chat no issues regarding our personal income etc, just

"well the law of the land is I will grant the repossession order and give you the maximum 2 years for the arrears to be cleared by way of setting the order to one side."

This meant they calculated the arrears with no interest at all to be added split it into 24 months payments and added it to our existing monthly payment.

This was a court order and it was rubber stamped and stressed that we had to abide by it as if we missed just one payment they did not have to go back into court and could take possession of our home.

We got back on our feet quickly then and the order was disolved once the arrears were paid and the monthly payments back to the correct amount. All was forgotten and life resumed. I could not say if more or less people attended as no one talked to each other waiting outside the rooms.

I have been into court now twice here, first adjourned and second adjourned it is humiliating yet at the same time you find yourself comforted by others and do talk? not expected at all. I could not comment as to which is right or wrong but do feel there should be some private mediation access in between the hearings in order to try and resolve the matter and maybe have a court rubber stamp the outcome for peace of mind on both sides. Trying to talk to a bank is initiating a bullying one sided conversation and having a mediator present especially when communication seems to have fallen down i.e. court action could help and not allowing to get too far in arears before the issue is resolved I still feel is best as we have got a bit too far and things should be addressed sooner rather than later. This is just an opinion from experience nothing more.

 

[Brendan Burgess]

I have highlighted that your first experience was in the UK, because I don't think it ever happened like that here. I am really surprised that you got a stay of two years in the UK.

This meant they calculated the arrears with no interest at all to be added split it into 24 months payments and added it to our existing monthly payment. This was a court order and it was rubber stamped and stressed that we had to abide by it as if we missed just one payment they did not have to go back into court and could take possession of our home.

That would result in around 50,000 immediate repossessions in Ireland.

Not sure about mediation. FLAC and others call for some independent body to be given a right to impose a solution. Initially I was opposed to that. But I have changed my view as long as the decision of the arbitrator was fair and binding on both sides. I have told FLAC to be careful of what they wish for. In most of the cases I have seen in the courts, any fair minded person would have granted an immediate order as nothing was being paid, sometimes for many years. And in deserving cases where the borrower is making a decent effort, the arbitrator would protect them against the bank.

 

[Harold]

I would be one of the 50,000 Brendan and I need to keep our home, Im not suggesting that the way it was done then in the UK is right for the times now.

After that first experience I worked for a loan company in the UK and trained in their legal department, going on to represent them in court hearings on unsecured debt only, not mortgages. All cases were done in the same way behind closed doors. Did every one attend during the 4 yr period I worked there, yes. I do not recall a case with none attendance. We were trained to always keep communication open and not disrespect the defendant.

Going into open court does have a serious effect, it can seem dikensian being far closer to those old debters prisons than the 21st century. People who are struggling with their only asset , their home, are not criminals and the issue should never be compared to the criminal court in any way. Whilst I do not want to be there at the same time I find the court system fascinating perhaps from my previous training.

I have attended twice and seen barristers or solicitors, not too sure, stand up and not have the answers for the registrar, confuse their paperwork as are up and down all morning with different cases. From just observation it seems there is no standard guidlines to follow it is all very confusing. Looking around the court I saw an elderly couple holding hands clearly mortified at sitting there, I saw a young woman alone who was on the verge of tears after I had stood up to state my case and worried I had in some way made it worse for her. Their was a guard their presumably because their were protesters on the steps outside.

I would feel that their should be some sort of last resort or even first step of the court system mediation in a private room, cut out all the complication and have bank official, home owner and maybe court official/mediator. work out a plan that MUST be followed protect the home owner from the banks DO IT OUR WAY aproach, assess everything and then have it followed up in writing and even stamped by the court as a final option.

Thereby everyone truly knows where they stand and then if default occurs the home owner will go into the court system and risk repossesion.

Out of the 87 cases listed the day I attended in January presumably some may be able to be sorted out with a mediation system if that was available and not ever have to attend court unless they default.