Thursday 8 December 2016

Banks face eviction battles as couple start legal action

Dearbhail McDonald Legal Editor

Published 17/11/2010 | 05:00

BANKS seeking to take back homes from troubled borrowers will face a range of civil actions to prevent families being evicted.

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The warning that banks will face an onslaught of legal challenges from homeowners comes as a married couple secured permission from the High Court to sue the Government over laws allowing county registrars, who are civil servants, to grant possession orders.

Yesterday, Dubliners Peter and Anne Byas secured permission to challenge a possession order granted to the Educational Building Society (EBS) for their home.

A stay (postponement) has been placed on their eviction pending the outcome of the court proceedings in which Ireland, the Attorney General and the County Registrar for Dublin are being sued.

The couple, who have three children, bought their home for €670,000 in 2004 but, as a result of the husband becoming unemployed, they got into mortgage arrears of more than €37,000.

The action is the first in a series taken on behalf of homeowners by New Beginning, a group of solicitors and barristers who have vowed to represent, on a non-fee basis, families experiencing mortgage difficulties and eviction who cannot afford legal costs.

The test case could affect hundreds of possessions obtained after the introduction of new Circuit Court rules, which came into effect last year, allowing county registrars to grant possession orders if a homeowner does not turn up in court or does not defend the threatened possession.

Previously, possession orders had to be granted by a judge

Last night barrister Vincent P Martin, spokesperson for New Beginning, said that the court application was "only the first step but it is an encouraging beginning".

He welcomed the decision of Mr Justice Michael Peart to place a stay on the possession order pending the full outcome of the judicial review challenge and said that the result may have an immediate effect on many cases throughout the country.

Mr Martin predicted that different types of civil actions will be instituted against banks in the coming months.

Rights

"New Beginning doesn't want to give false hope to persons facing the prospect of losing their homes, but all cases which can be legally defended will be robustly defended," he said.

In their action, the Byas family are seeking an order quashing the registrar's order for possession.

The challenge is being brought on grounds, including that the registrar acted beyond her powers .

The couple claim that because orders for repossession have severe effects on their rights, they should only be granted by a judge.

To entrust such a power to persons other than judges, it is further claimed, is to interfere with the proper administration of justice and their human rights. The EBS is a notice party to the proceedings.

It secured an order for possession for the house last May, subject to a stay of six months, due to end on November 20.

In a court statement, Peter Byas said his family had no alternative residence and he was concerned for their future and well-being.

Irish Independent

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