Sign in. It’s quick, free and it’s up to you.
An account is an optional way to support the work we do. Find out more.
IT WAS STANDING space only in a stuffy room at the Four Courts last Friday as solicitors and barristers went head-to-head with banking customers, and the Master of the High Court was referee.
The lay litigants (people who are representing themselves in court) were among over a hundred cases on Master Edmund Honohan’s list that morning.
A Ms Tumulty, who was the first lay litigant of the day, told him that she had tried to get her loan restructured in 2007 “when the interest was sky-high”. She claimed that AIB had “refused to engage” with her.
The woman asked that she be given a six month extension, addressing the bank’s barrister and telling him “you have dragged me on a long time”. She was given a date of 2 February.
Another litigant representing himself was John Harley, who went guarantor on a loan from AIB for his brother Paul.
AIB is now pursuing the two brothers for the debt, but Paul, according to his brother, was in Dubai.
Harley apologised several times to the Master for his lack of knowledge about the proceedings or about how to represent himself.
“You’re not expected to know, you’re not a trained lawyer,” Honohan replied.
‘It all happens quickly’
Lay litigants, like those who appeared before the High Court Master last week, are at an obvious disadvantage when they come up against experienced members of the legal profession who represent their lenders.
Free Legal Advice Centre (Flac) policy analyst Paul Joyce said it is a “difficult space for someone to be in court on their own, trying to navigate a system that is difficult to understand”.
There are lots of cases at the one time, it all happens quickly, your case is called and you have to be alert and so on.
“The problem is that traditionally the State legal aid service has been by-and-large focused over the years on family law proceedings, even though there is no exclusion under the Civil Legal Aid Act for these types of cases,” Joyce explained. Only a very small number of debt cases have been approved for legal aid since the system was put in place.
He said applicants to the Legal Aid Board must undergo both means and merits tests. The latter involves assessing whether the State should essentially use up resources in providing a defence for you, and whether it is likely to succeed in the case.
Particularly where we’re talking about a roof over someone’s head, the merits test shouldn’t be as strict as it appears to be. It should be relaxed, particularly in the context of the 32,000 people in mortgage arrears for over two years, the housing shortage and the homelessness crisis.
It doesn’t make an awful lot of sense in terms of public interest for people to lose their homes, if it can be avoided.
‘I’m not going anywhere’
Later in the morning, a Mr Hilliard faced off with counsel for vulture fund Havbell Dac, which bought his loan from Permanent TSB.
The fund claims Hilliard and his wife now owe €1.8 million.
Hilliard said his wife was “not well” and he was there to represent them both. He told the Master that he had suffered from heart problems and “had no money to deal with it”.
He said his property was “sold seven months ago without my consent, 30% lower than the price”. He has four other properties and said he had been a “good landlord” for the last ten years.
Havbell Dac’s counsel told the Master that there is “a very large amount of outstanding money here”. Honohon replied that he found it difficult to accept from any “funding agency that they’re out a million [euro] when the reality is they’re probably only out 300,000″.
He told Hilliard that he needs to submit an affidavit and gave him a new court date of 12 January.
As he walked to the back of the room, Hilliard said: “I tried to negotiate with these people for a long time and they ignored me – but I’m not going anywhere”.
Mark Cashen was also representing himself in a case Permanent TSB had taken against him. The bank’s barrister applied for an adjournment, telling the master they did not have papers.
“You’ve taken them by surprise, they didn’t expect you to turn up today,” Honohan told Cashen.
Legal advice
Flac’s Paul Joyce said there is some assistance available to people in mortgage distress, but it only goes so far.
He referenced the government’s Abhaile scheme which offers vouchers to people in debt so they can seek free legal advice. However, this assistance is limited to a consultation with a solicitor – the person will still have to argue their own defence when they come before a registrar or a judge.
“At each county registrar sitting there should be a duty solicitor from Mabs (Money Advice and Budgeting Service) who people can speak to outside court and who can make observations on someone’s case, but they are not the borrower’s solicitor.
Technically, there may be a limited number of defences in repossession cases. Traditionally, the law would not regard an inability to pay as a defence. There may be instances where there are flaws in the bank’s paperwork, but that is not something a lay litigant would notice.
Joyce said the establishment of a separate court to deal with arrears cases could make all the difference. This court would have the power to look at the terms of the loan, payments made or missed, and the current circumstances of the borrower and rule, if necessary, that a possession order should not be granted based on these criteria.
“At the moment there are three private members bills before the Oireachtas – one that the Master had involvement in - and they are all about keeping people in their homes.
“None of them seem to have progressed far yet. This is all about trying to allow some assessment that balances the rights of lenders with the rights of people to continue living in their homes, and the public interest.”
To embed this post, copy the code below on your site
Free legal aid for regular, lay abiding people, fighting a banks team of lawyers? No way, we need to reserve that only for people with hundreds of previous convictions, and a rough upbringing, who’ve never paid a penny in tax!
@Eyepopper: you no nothing about paying tax
@Gerry Glynn: produce the evidence.
@Paul Coughlan: sarcasm boys , relax, they have us fighting between ourselves now, what a state this state is in, the banks are ruling make no mistake , most of those people they are now vampiring , are the victims of the government levy to bail the same banks out , had their wages devistated, and the thanks they get, government backed eviction ?????
@Eyepopper: That’s a terrible way to talk about the David Drumm, although I do understand the anger. After all, they’ve only crippled the bloody country with their greed. They should help those who cannot afford legal representation to keep their home.
What kind of nation have we become? , that we allow faceless vulture funds rule the roost. Back in the 80′s people that were in distress could engage and sort problems. Now there is no face to face contact, to the benefit of the banking fraternity so that they can sleep easier and have an easy conscience.
@Celtic Spirit: what type of country ? Michael Noonans type of country, that what ? The bog guys screw up, and the little people pay up. Fine Gaels mantra !!!
@Celtic Spirit: what type of country ? Michael Noonans type of country, that what ? The bog guys screw up, and the little people pay up. Fine Gaels mantra !!!
@Celtic Spirit: to be fair if you read the attitudes of the judiciary at district & high court level, they’re far from pro-vulture fund. I know someone who works with these families & has been to a lot of the court cases- he said the judges despise the vulture funds. Do as much as possible to be reasonable to the families.
@Randal McNally: FG sold the country to vultures. but then they threw the greeks under the bus to please the germans. i’m ashamed to be run by this lot.
Vultures, the worst kind of s**m !
The banks and these “firms” could make just as much money by restructuring these mortgages, even making them generational as they did in Japan. But no, they want the quick buck, so they can move on to the next unfortunate victims, in the next unfortunate location, regardless of hurt or loss of life.
Today an arm of Goldman issued demand notices by the bucket load in Ireland. Some believe it or not, who had Trackers taken off them, and still not resolved.
There will be more deaths this week, and they are responsible.
I’m ashamed of my government and my country.
This represents all that is bad in this country. A person or persons trying to retain their home and they’re not allowed to use state aid. But a person or persons wishing to create havoc in society, and the state aids them to fight our laws….. How insane is that!!!
don’t get think i would have as much sympathy for the lad that owes 1.8 million and has 4 other property’s.
@TheBluffmaster2: shhh,no talking common sense around here,
@TheBluffmaster2: Maybe if he had 50 plus previous court appearances for theft, GBH, or firearm offences he might fit your criteria for a sympathy vote…
Banks should not be able to sell loans only to the state and that is no great shakes either. Or alternatively the same deal should be offerred to the home owner as the vulture fund.
We could start to get to grips with extortionate legal fees. We have handled the banking crisis completely wrong. Hundreds, if not thousands of bankers should be incarcerated for blatant criminal behavior. Currently the banks operate a criminal cartel which charges artificially high interest rates and robs people through scams like the Tracker Mortgage Scandal.There is no question but that Noonan and Kenny were the principle architects of the tax haven vulture funds. People have gone to prison for less.
@Seamus Maye: perhaps it’s time for Noonan & Kenny to come before the courts & explain why they have contributed to eviction of families from their homes & add to suicide .
Noonan & Kenny should be behind bars for their actions .
this is all back to the credit institutions financial support act 08,where TD gave power to min for finance to pledge public funds for bank who then handed pun purse to Imf and eu on term of loan offer that public funds will enter to keep named banks capitalised to eu standards if they can’t do it themselves. It means bank are a liability, hidden liability of tax payer but at mom off current day to day expenditure save promissory note and state not go to lift one finger to risk them coming back if that means no legal aid for repossession cases, no tracker mortgage compo no money to local authorities to purchase land so be it and no. Message from govt endorsing these bills that are in dail pipeline.
no TD has challenged govt authority to bind people to yet of that loan without first laying bill before dail. For its permission to di so under art,, 29 of constitution people keep on electing these TD to walk rt all over us rather than lobbying local TD to challenge govt authority to accept terms of loan without bill being laid before dail requesting its permission to do so under art 29 5 2 in courts
@Mary Ward: I’d settle for some punctuation.
Inequality of arms is intentional so as to ensure the banks win.
It is routine to see a team of 5 lawyers for the Banks and vulture funds as well as support staff against lay litigants who cannot afford legal representation. That’s the wat the statement is designed.
You will see Senior Counsel for the Banks having an amiable chat with the Judge in open Court, sometimes socially friendly with the Judge and judgment delivered against the lay litigant without any scrutiny of interest rate calculations. It is a surprisingly summary and almost casual process.
The role of the CBI, the Government and of the Courts is to protect the Banks agaiNst the consequences of reckless overlending.
A bank will bundle lots of debt together and sell for 20-30c on the euro yet won’t entertain writing down a mortgage to leave someone in their house by 30-40%.
FYI the defendant in these cases submits a replying affidavit, not a grounding affidavit
My god,where have we come to in dear old Ireland?
Ruthless foreign vulture funds getting huge amounts of family homes at knock down prices and trying to kick families out of their homes.
I do NOT agree with this Hilliard guy looking for free legal aid when he owns 4 properties.No,just sell 3 of them Mr Hilliard and look after your unwell wife.Thats just taking the pi#s altogether.
How can you believe you can ignore a debt of 1.8 million.Sell the damn properties.
@gerry fallon: Agreed he wants his cake and to eat it. But this bank selling debt is wrong. The mortgage contract is between two parties and should be honoured unless by agreement by both.
NAMA in particular may look good on paper boasting they will make a profit- they bought low and are selling in a rising market. What they mean is they covered their costs though the rush to shut them down cost money I suspect. Noonan may well yet inflict more damage than Bertie
Bankers. AKA, Gangsters !
“Are there no orphanages?”, “And the union workhouses, still operational?” – Ebenezer. Vulture s(um straight out of Dickensian London times.
Angela Kerins, disgraced former Rehab CEO, got two thirds of her legal costs paid for out of the public purse for her FAILED case. How the f*$k!?!
have your say