Thursday 14 December 2017

Bad advice from unqualified in repossession cases very costly says judge

(stock photo)
(stock photo)

Mary Carolan

People facing repossession of their homes have been warned by a High Court judge against relying on “bad” advice from unqualified people in pursuing “futile” and potentially very costly cases that are “doomed to fail”.

Mr Justice Seamus Noonan expressed particular concern some unqualified people are providing legal "advice" for financial reward, stressing it is a criminal offence for unqualified persons to draft, for reward, documents for use in legal proceedings.

He made the comments when upholding a possession order granted by the Circuit Court to Start Mortgages Ltd for the home of Vincent and Madeline Kavanagh at Beechwood Park, Carlow.

He put a three month stay on execution of the possession order, and on an order for High Court costs against Mr Kavanagh, representing himself, who indicated he intended to appeal.

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In his judgement, Mr Justice Noonan said, in some cases, advice, for reward and otherwise, is being provided by interest groups who appear "agenda driven", are "implacably opposed" to courts making possession orders and sometimes engage in behaviour transcending legitimate bounds and leading to contempt proceedings.

Why anyone would want to pay for bad advice and assistance which inevitably leads to "disastrous consequences", particularly when "excellent professional advice is available at little or no cost", was "something of a mystery”. The Court of Appeal recently voiced similar concerns, he added.

Mr Kavanagh, the judge stressed, conducted his case with “absolute propriety and courtesy" and did his best to assist the court.

The possession order arose from failure to meet a repayment demand concerning a €110,000 mortgage taken out by the Kavanaghs in July 2007 with Bank of Scotland Ireland, later transferred to Bank of Scotland.

After the couple fell into arrears from 2009, BOS demanded repayment in 2011 and initiated possession proceedings. In 2014, BOS sold its loan portfolio to LSF IX Paris Investments Ltd which nominated Start to acquire the relevant purchased assets.

Mr Justice Noonan said the Kavanaghs are “not untypical” of married couples who ran into difficulties with mortgage payments as a direct consequence of the global “financial catastrophe” from about 2008. He had “great sympathy” for the couple, “and many others like them who have faced serious financial problems as a result of circumstances beyond their control".

There was no issue in this case concerning the Circuit Court’s jurisdiction to make the possession order and the Kavanaghs had not disputed the monies were loaned on foot of the 2007 mortgage and they had defaulted in repayment.

The main focus of Mr Kavanagh’s arguments related to Start’s title to take the case, he said. An "elaborate analysis" of the title documents, engaged in after the intervention in the case of an anonymous third party, had "entirely failed" to have regard to the relevant law providing register of title is "conclusive evidence” of Start’s title to the mortgage charge.

No amount of analysis of deeds and documents by unknown third parties could alter that "simple fact", he ruled. He also held the Beechwood Park property was Mr Kavanagh's principal private residence.

When the Circuit Court made the possession order, it made no order for costs against the Kavanaghs but, since then, Mr Kavanagh conducted this appeal in circumstances risking substantial costs against him which risk might have been "entirely avoided" were it not for intervention of the anonymous third party, he added.

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