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Some debtors using Freeman claims 'to evade obligations'


 Barrister Rossa Fanning

Barrister Rossa Fanning

Barrister Rossa Fanning

BORROWERS relying on "Freemen of the land" style theories of law pose a serious challenge to the legal system, according to one of the country's prominent commercial lawyers.

Barrister Rossa Fanning said that while there had been some important legal disputes on points of genuine legal controversy by lay litigants resisting possession, many of the cases are not genuine but "stubborn acts of defiance by borrowers disenchanted at the unhappy change in their economic fortunes".

There have been more than 100 cases in the last year in which borrowers have used versions of Freemen arguments to resist possession by receivers and banks.

The Freemen claim, amongst other things, that they don't recognise the authority of the courts.

Borrowers have also sought to evade judgment or eviction by claims that they have transferred their mortgages to secret trusts, claiming they can't be evicted from their homes or business premises.

Mr Fanning said that while every case must be heard and determined carefully on its own merits, the prevalence of lay litigants defending proceedings on the basis that High Court judges are not properly appointed and don't have jurisdiction to hear cases – on the basis of "Freeman of the land" theories of law – is a serious challenge facing our legal system.

Mr Fanning, speaking at a Griffith College Dublin (GCD) conference on the legal landscape after the financial crisis, said that receivers are seeking injunctions from the courts on a daily basis.

"A borrower's obligations to his bank cannot be made to miraculously disappear into a puff of smoke," said Mr Fanning.

"The whole point of a mortgage is that it prevents you from transferring your interest in a property until it is paid off.

"These arguments constitute a threat to law and order in this society because they are being advanced by people who, being realistic about matters, are engaged in a campaign aimed at the wholesale tearing up of contractual obligations without any legal basis to support same".

Earlier this year a High Court bench warrant was issued against Charlie Allen, the organiser of the Kilkenny based Rodolphus Allen Trust, which says it has accepted €2bn worth of assets from up to 2,000 struggling debtors.

The warrant related to the organiser's role in a standoff against IBRC (formerly Anglo) receivers in Brannockstown, Kildare, last August.

Gavin Simons, a partner in AMOSS solicitors who has dealt with several Freeman cases, said that "pseudo legal" advisers were doing borrowers more harm than good.

"They profess to have a secret legal remedy that the legal world knows nothing about," said Mr Simons.

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"Once engaged, co-operation between bank and borrower becomes impossible.

"Ultimately, it is not in the best interests of the borrower."

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