This Changes Everything

at

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The High Court in Dublin (top), Laura Finnegan, and Justice Deirdre Murphy

Or does it?

Yesterday, Land League member Finbar Markey, wrote on the website Fair Society that, for years, banks have been applying to Circuit Courts for possession orders on family homes, most of which are worth more than €75,000.

Mr Markey said banks have doing this even though Circuit Court rules state that only matters involving less than €75,000 can be heard in the Circuit Court.

Mr Markey said the banks have been circumventing the rules by claiming the rateable value of the property is below the threshold – approximately €253 or less.

However, Mr Markey said a ruling in the High Court yesterday, by Ms Justice Murphy, put an end to this in one particular case concerning Laura Finnegan.

Mr Markey writes:

“In the High Court a jubilant appellant, appealing an Order of Possession on her home from the Circuit Court, and with the advice, support and backing of the Hub-Ireland [a group which assists people with mortgage difficulties] broke the mould.

In her judgement Ms. Justice Murphy said, ”The plaintiff maintained that it had invoked and was entitled to the provisions of the valuation act and a letter issued by the Valuations office was sufficient: both these assertions are manifestly unfounded on the evidence…….it appears to the court on evidence that the plaintiff have devised and used an ad hoc non-statutory process which is devoid of legal effect, for the purpose of persuading the Circuit Court that it has jurisdiction which it does not in fact enjoy’.”

He adds:

“So what are the implications of [the] ruling? Firstly, we can expect that banks will be left with no choice but to withdraw their current applications in the Circuit Courts for possession of family homes. If you are in court over the next while demand a strike out. If an Order has been made on your home, it can be considered null and void and as having never existed. Contact your local Sheriff over the next few days and ask what the ruling means for you, meanwhile the various anti-eviction groups around the country will be forwarding the judgement to all Registrar’s and Sheriff’s and requesting their current position in light of the ruling.”

Anyone?

Banks dealt massive blow with High Court judgement today: home owners celebrate (Fair Society)

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31 thoughts on “This Changes Everything

  1. winstonia

    Are these the are you here on your oath lads? and that speeding summons isn’t in my name etc. I wouldn’t trust them on any legal advice

  2. Mulch

    What was the banks reasoning behind trying to go through the circuit court? I’m assuming because it would be cheaper and less time consuming?
    All this will mean is that they will now have to be heard in the High court rather than the Circuit court.
    Wasn’t there discussions previously of setting up a court to specifically hear about repossession orders due to the predicted high volume of cases that are expected?

  3. Uncle Fester

    Fair play to the “I want my house for free” folk for their persistence.

    Meanwhile renters get to suck up huge rent increases and get shown the door if they don’t pay.

    1. Sinabhfuil

      But the renters’ problem comes from the fact that the councils are not building homes and renting them out – if they did so, the general rents would steady out.

      1. Uncle Fester

        Not all renters are social welfare recipients Sinabhfuil and that’s not the problem at all.

        The problem is that some folk want to own their own house (or multiple houses) but have somebody else pay for it.

        Meanwhile, renters pay or get out.

        1. Anomanomanom

          Of course renters pay or get out. You can’t live for free in someone else’s property.

          1. Rob_G

            Unless the ‘someone else’ happens to be the bank; in that instance, a lot people seem to think they can.

  4. Paolo

    “In the High Court a jubilant appellant, appealing an Order of Possession on her home from the Circuit Court”

    It may be her home but it isn’t her house. If she hasn’t paid for it then it ain’t hers.

    1. Mark Dennehy

      Hm. So the choices are:
      – let the banks take the hit.
      – let our taxes take the hit of paying for emergency shelter for people evicted.
      – fupp a citizen out onto the streets because life is hard and civilisation wasn’t invented to make it easier on people, which is why we all still grow our own food, mine our own metals, teach our own children, perform our own surgery, and never depend on the state for anything at all ever, and our role in life is to make people richer and then die quickly and quietly so as to not get in everyone’s way after we pass retirement age.

      Me, I’m kinda thinking I’ve paid the banks enough and they can take a hit for a while.
      But I’m a commie pinko liberal hippie, so YMMV…

      1. Rob_G

        ” – let the banks take the hit”

        – the taxpayers own the bank.It’s hardly fair if you are taxpayer and pay loads of rent to live in small apartment if there are people down the road who live in a four bedroom house who aren’t paying anything.

        1. Mark Dennehy

          You think we the taxpayers own the banks?
          Uh-huh. Let me know when you get your invitation to the AGM would you, I’ve not gotten mine yet…

      2. Uncle Fester

        Mark
        Three quarters of people in PPR arrears are in employment so they will be able to afford their own accommodation so the “emergency accommodation” thing is a bit of a red herring. It just won’t be the accommodation they are in at present.

        You’re also ignoring all the BTL arrears.

        Also, any hit the banks take get passed onto their customers who are still paying, namely the poor saps paying standard variable rates.

        1. Mark Dennehy

          You realise you just described us solving the wrong problem, right?
          If they’re in employment, change the mortgage terms. Keep them in the house. So it takes longer to pay off, who cares? Bank makes more money that way, we don’t turf anyone out onto the street, it’s cheaper to the State overall (and that’s the bill we pay, don’t forget). They’re not going to be living in luxury anyway, so the only loser is the bit in you that wants to see someone turfed out while you manage to pay your bills. And that part of you is not going to help when the next bad thing happens and you find yourself in their shoes.

          1. Uncle Fester

            Mark
            They didn’t pay their mortgage first time round and if they are in court, it’s probably because they haven’t stuck to the terms of a restructured mortgage. That’s at least two goes they’ve had.

            Anyway, no point in extending the mortgage term for older folk (according to MABS, they are the ones in arrears) because they won’t be around to pay it off. What do you want to do? Trap them in a debt prison till they are 80?

            Best and fairest way is to repossess the security and if they have no means, write off the shortfall so they can start afresh.

          2. Mark Dennehy

            “start afresh”

            Yeah, I don’t know what you’re smoking, but I’d like some please.
            “Start afresh” – meaning the loss of every penny you ever sank into that house – your life savings in most people’s cases -which was massively overvalued because of government incompetence and banks being run like private moneymaking businesses right up until they found they were bankrupt and then they suddenly became socialist public services…

            I mean, you do understand that the term “life savings” is a literal one, right? The total savings over a lifetime? You can’t start afresh after a loss of that magnitude. You’re done. No pension, no assets to speak of, nothing. You’re literally back at zero without the time to build back up to the point where you could retire before you are forced to retire and now you have penury in your old age to look forward to in a state that’s trying very hard to throw away nationalised healthcare in favour of a more american, poverty-is-a-moral-failure, sort of system.

            You need to spend more time considering your alternatives if something blindsides you tomorrow I think. What happens if you find that those flu-like symptoms you’ve been having aren’t flu but something that’s about to render you unable to work and drain all your financial resources unless you just want to give up and die in six months? What if your house burns down and you find the insurance company has a clause buried four pages deep in fine print that means you have no coverage?

          3. Uncle Fester

            Bankruptcy is a normal state of affairs in all western countries. People can and do move on from it. We need to overcome our aversion to it or be trying to come up with “Irish solutions to Irish problems”, which is usually codespeak for “give me a debt writedown and I’ll keep the house(s) thanks very much”.

            Anyway, you’re the one proposing that they be chained to their massive debt for even longer. How are they supposed to be saving for their retirement when they are paying their mortgage till they are 70?

            As for “You need to spend more time considering your alternatives if something blindsides you tomorrow I think”
            I do this by not taking on debt that I might be unable to repay later in life if circumstances were to take a turn for the worse. That’s the key problem facing people in arrears. People renting lost jobs too but they just suck it up and move to something they can afford.

          4. Mark Dennehy

            You need to examine Irish bankruptcy law if you think we’re like all other countries in that regard.

            On the other hand, people with “suck it up” in their lexicon when discussing social problems generally don’t tend to have actually thought about what they’ll do when handed a golf ball and a garden hose themselves, so it’s not quite so surprising you’d think bankruptcy in Ireland was some cushy deal…

  5. Don Speekingleesh

    The full ruling is here: http://www.thehub-ireland.com/ms-justice-murphys-ruling/

    I like this bit:
    In doing so, the court observes the defendant’ success on this aspect of the case is a pyrrhic victory. In circumstances where there is no dispute that the defendants borrowed the money and no dispute that they ceased making the agreed repayments in August 2011. this judgement merely postpones the day of reckoning while their debts keeps mounting. So be it.

    1. Caroline

      OK had a quick read, seems at a glance the judgment can really only apply to a limited set of cases, i.e. house built after 2002/mortgage created post-2009 and proceedings initiated pre-2013. And there’s also an uncommenced section of legislation which could kick it all to touch. And in fact could bring even more cases under Circuit Court jurisdiction if the market value limit is to be 3million.

  6. Caroline

    Good news for lawyers working marking fees on these cases if they just got bumped up to High Court actions.

  7. Toni The Exotic Dancer

    Why do I have to pay high rents? Because housing supply is restricted due to the lack of repossessions.
    Why do I have to pay high interest on my mortgage? Because banks cannot repossess their assets and have priced these losses into higher rates for paying clients.
    Why can’t I afford to buy somewhere? Because housing supply is restricted due to the lack of repossessions.
    If they can’t/won’t pay let them live somewhere they can afford.

    1. Mark Dennehy

      “Because banks cannot repossess their assets”

      You noticed they weren’t trying to until fairly recently, right?

      “Why can’t I afford to buy somewhere? …
      If they can’t/won’t pay let them live somewhere they can afford.”

      Did you just tell yourself to sod off somewhere else? :D

  8. Ferret McGruber

    The importance of this ruling which seems to have eluded many of the above, is that a judge has finally stopped the banks, in only this instance mind you, from playing ducks and drakes with the law. Whether one owes money, has committed a crime or broken a law there has to be due process where all parties abide by the legal rules. Otherwise, only those with sufficient funds can claim their rights.

    If you want an example, try and find out what the story is with Sean Fitzpatrick’s trial and why, after 5 and a half weeks, the jury have yet to hear a single legal argument.

    Is he the only one entitled to due process because he’s a member of the elite?

    1. Tá Frilly Keane

      This

      Ferrets is right

      The banks and the Central Bank want to own the whole home repossession/ personal insolvency process

      Be it by frustrating attempts by homeowners own efforts to renegotiate
      Or vetoing insolvency arrangements
      Or by funding selected organisations to sing to their tunes

      Unless you are on their terms
      You won’t get anywhere with them

  9. Finbar Markey

    Update to article….

    N.B…. update : A deeper analysis of the “Bank of Ireland Mortgage Bank -and- Laura Finnegan and Christpher Ward” case within 24 hours of its reading from the bench reveals a number of exclusions within this judgement and accordingly the author of this article adds the following…
    To clarify some details about yesterday’s great win in the High Court regarding applications to the Circuit Court for possession Orders on family homes and the jurisdiction level of 75k. Having read the Judgement in its entirety a number of times now, the ruling has most significance for those who took out their mortgages between 2001 and 2009, and in which the bank’s initiated proceedings prior to the 31st of July 2013 (the date that the Land and Conveyancing Law Reform Amendment Act 2013 took effect).

    For those whom the bank have initiated proceedings after the 21/8/13, the ruling is not so clear in that the 2013 Amendment to the LCLRA amended the law facilitating banks to initiate home possession cases in the circuit courts despite there being no rateable valuation. For those whom the bank have not initiated proceedings before the 21/8/13, do not be downhearted as there are a number of avenues to push this over the line for you too.

    The 2013 amendment is facing a constitutional challenge as we speak because it is essentially retrospective law which is an abomination to the basic principles of law. It would also appear where the loan was an equity release on a property already paid for and not for the purpose of buying a domestic dwelling, and in which the home was used as security and not a “housing loan mortgage”, and this is where most older people have been trapped, the case must be heard in the High Court….. Analysis of the Judgement continues………

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