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Monday 9 December 2019

'Justice is blind' to star power as celebrities fight for their homes

Those who struggled to pay modest debts look on in awe as huge loans written down

Frank McNamara and Theresa Lowe. Photo: David Conachy
Frank McNamara and Theresa Lowe. Photo: David Conachy

Mark Keenan

We've had a summer of celebrity down at the repossession courts as one society couple after another appears before judges in attempts to hold on to various luxury high-brow residences in the face of lenders and funds attempting to make good on massive outstanding arrears.

"An unbelievable deal" was how a leading legal source described the €2.9m loan write-down ordered by a High Court judge in principle this week in favour of musical conductor Frank McNamara and his barrister wife, former TV presenter Theresa Lowe.

If the couple can clarify details of an inheritance Mr McNamara says he is scheduled to receive, then their mortgage will be radically written down, with a low interest rate on a new mortgage of €420,000 on their Dunshaughlin home.

The court heard the house is now worth €550,000. The average price for a home in Meath is €240,000.

The couple have owed €3.7m due to financial difficulties starting in the early 2000s.

Having invested in properties, they ran into trouble when Mr McNamara, who was once a regular feature on the 'Late Late Show', didn't receive substantial musical royalties he was due from the US. The US fund Tanager takes the brunt of the week's ruling.

Meantime, former Miss Ireland Pamela Flood and her restaurateur husband Ronan Ryan managed on Thursday to sustain a breathing space of three weeks to stave off eviction from their luxury €900,000 home in the upmarket seaside suburb of Clontarf.

That was providing they continued paying their €3,700 mortgage payments as they fall due. The case is now adjourned until September 2.

Last month, a court heard the couple had not made any payments on their mortgage in the nine years to February.

Ms Flood later told the 'Sunday Independent': "It's not immoral, it's not even illegal, it's just missing mortgage payments."

There had been a dramatic turn in the previous hearing when Judge Jacqueline Linnane granted counsel for US fund Tanager leave to seek short service of an application to attach and commit both of them to jail.

This was for breaching a previous personal undertaking and court order that they would leave the house by July 9.

But Judge Linnane was then informed Mr Ryan had sought and obtained a Protective Certificate under personal insolvency legislation which meant they could not be interfered with for 70 days.

Also last month, publisher, author and Little Museum of Dublin founder Trevor White, successfully fended off an attempt to seize his €1m family house in Mountpleasant Square, in Dublin's upmarket Ranelagh suburb. Mr White's home will now not be taken, providing he makes agreed payments over the next six months. In separate but related proceedings, a fund secured a judgment for €3.9m against Mr White's parents, Peter and Alicia White (formerly of Whites On the Green restaurant), and two related companies, for the balance of monies it claims are outstanding from various loans advanced over a decade ago.

The actions by Feniton Property Finance DAC followed the breakdown of a settlement agreement entered into in May 2017 in relation to a number of loan facilities advanced in 2005 from Bank of Scotland Ireland to Peter, Alicia and Trevor White, and a related company to a trust into which ownership of Trevor White's home had been transferred.

Also in July, Bernard Rocca and his wife Theresa were represented in court in an attempt to avoid having their €1m home in Castleknock repossessed against Mr Rocca's business debts of €2m.

Havbell, which bought all of Mr Rocca's loans at a discounted rate from Permanent TSB bank, claims the €2m business buy-to-let loans are guaranteed on the Rocca family home at Woodberry in the upmarket suburb of Castleknock, Dublin 15.

This phase of the action saw a complex legal "chicken and egg" standoff with the Roccas claiming to have the money put by to clear the original mortgage on the house.

To the average Irish person, who has struggled through years of austerity, staying at home at weekends and forgoing family holidays so the mortgage can be paid, it must seem that those who borrowed big and lived large are now being treated with kid gloves.

One society couple can be allowed to live payment-free in a €900,000 luxury home for almost a decade (at current rental rates, that's worth €42,000 per annum) and another has just had €3m in borrowings simply written off.

To punters looking on, there will be little sympathy for those who, as they see it, borrowed large, gambled and lost and now appear to be being rewarded; whether in the form of a €3m write-down or benefiting from a nine-year free tenure.

But the reality is that those who are permitted to remain in luxury homes over many years, are in fact being treated the exact same as anyone else.

"I know the optics might not seem great but the fact is that there's an insolvency process and a court system in place and those who have luxury homes are just as entitled to use its protection as much as anyone else," said Michael Dowling, a leading mortgage consultant and a former head of IMAF (Independent Mortgage Advisers Federation).

"In fact, the owner of a two-up two-down family home who is in trouble can, and does, avail of the exact same processes. They are treated the same." However, he said those who have been in a position of wealth are generally more prepared to fight to stay in their homes than others who might be more easily intimidated by banks and funds.

A recent NUIG study on the subject suggests there could be 20,000 mortgage holders in court limbo.

As cases continue to be processed, those of better known individuals will grab the media's attention, as they have done this summer.

In these cases judges have been credited with protecting the family home as much as is reasonably possible, with the ultimate aim of taking children's welfare into account.

Recent cases will remind us of former property kingpin Brian O'Donnell, in 2015, who tried hard to hold on to his €8.5m home at Gorse Hill at Vico Road, Killiney, with outstanding debts of €71.57m.

Eventually he delivered the "bloody keys" in person to Bank of Ireland's CEO at that year's AGM. Mr O'Donnell went bankrupt in Britain and two years later acquired a luxury Victorian five-bed on an acre down the road on Killiney Avenue for €1.85m.

Is it time to consider that all cases being treated the same is not fair? Because to most of us, the owner of a two-bed terraced house in arrears of €30,000 due to unexpected unemployment is most certainly not the same as the person living in a €10m mansion who owes €70m because they played property speculation on a grand scale and lost. But this is how the Irish legal and insolvency system sees it.

A good start would be for courts to stop treating "the family home" as utterly sacrosanct if it is a trophy home, and begin thinking in terms of protecting the right to "a" family home instead.

Perhaps it's time to introduce a process within a process whereby a court can order a downsizing to take place in the case of a top-end luxury home, that it be sold and the owners directed to replace it with a smaller version of a reasonable size in the same area.

The surplus cash could go towards the debt while the children are still protected.

Such a change would at least be a start in removing commonly held perceptions, that outcomes seem to favour the well got.

The alternative is to accept a uniquely Irish form capitalism - if you're going to borrow, do it large and don't worry if you fail.

Irish Independent

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