High Court: Judge condemns “unregulated charlatans” taking advantage of vulnerable defendants in possession proceedings

Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 531
• Court:
  High Court
• Judge:
  Mr Justice Max Barrett

Delivering judgment in the case, Mr Justice Max Barrett commented that the defendants seemed to have been assisted by “unregulated charlatans.”

The court described such individuals as “fraudsters” who preyed on vulnerable litigants by “selling them a crock of nonsense.” The court noted that the defendants had raised a host of legal “oddities” in submission and had relied on “strange documents” to deny the debt to the plaintiff. The court dismissed each of the submissions and granted judgment in favour of the plaintiff.

Background

The defendants were a married couple and had taken out a mortgage loan with Permanent TSB plc in 2007. The mortgage covered their family home and was repayable over 15 years. The loan agreement contained a condition that, if the defendants failed to make two consecutive monthly payments, the bank would be entitled to immediate payment of all sums under the loan facility.

In May 2011, the defendants began to miss repayments on the mortgage. Demand for the secured monies was made by Permanent TSB but the defendants did comply. The defendants only made one payment on the mortgage in 2015 and 2017, with no further payments coming after this.

Accordingly, Permanent TSB issued Circuit Court proceedings seeking possession of the defendant’s property. The loan was subsequently acquired by Start Mortgages DAC, who was substituted as plaintiff. An order for possession was granted and the defendants appealed the decision to the High Court.

During the course of the appeal, the defendants raised a wide variety of claims and allegations which were unusual. The defendants relied on several documents which had no sound legal basis. This included requiring court officials to answer questions within a specific time, with the court officials being deemed to accept their proposition if there was no response. The defendants also claimed that the “high court land registry” acted as its trustee regarding the relevant folios.

Further, it was said that the defendants were “living man & living woman” and were not “commercial corporations.” The defendants said that they did not consent to the case being heard under “statute/commercial codified law 1933 format” or under “maritime/ecclesiastical/canon law 1986 format.”

The defendants had tried to engage in direct correspondence with the Circuit Court President and the County Registrar, demanding answers to their letters.

The defendants raised a myriad of arguments in the case. In addition to those already stated, the defendants claimed, inter alia, that the proceedings were deficient because the Circuit Court President failed to answer their letters, that there was a lack of jurisdiction, that filing a standard financial statement was not a mortgage obligation, there was a breach of the Unfair Terms in Consumer Contacts Regulations and that the Master of the High Court made favourable comments to their position.

The wife also said that she was under undue influence in entering the mortgage and complained that Start was not the correct plaintiff in the proceedings. In all, the defendants raised at least 27 arguments in defence of the proceedings.

High Court

The court began by commenting that the stance adopted by the defendants was “most unwise.” They had failed to make any effort to repay the plaintiff for a number of years. They could not avoid the “elephant in the room” that they freely borrowed money and secured it on their home.

The court noted that there was a strong impression that the defendants could still come to an amicable arrangement with Start if they chose to “play ball.” The court felt there was still a “final window of opportunity” to engage with MABS and the mortgagee with a view to allowing the defendants to keep their home.

The court then considered the “strange documents” which had been provided to it by the defendants. The court was deeply critical of the “unregulated charlatans” who took advantage of vulnerable litigants by pretending that there was a “trick of the legal loop” to avoid repayment of debts. The court proceeded to outline some of the documentation relied on by the defendants and rejected all of it. The documents were not based on legal principles and engaged in fanciful legal propositions.

The court urged all litigants to avoid the “fraudsters” and engage regulated professionals when they are dealing with financial difficulties. The court noted that if lenders would not believe that there was serious engagement in the present scenario and cases would have to proceed to judgment.

The court stated that the “blizzard of bewildering documentation” did not provide a basis for avoiding summary judgment. The “litigation by filibuster” approach would not be successful where a plaintiff’s proofs were in order and where defendants failed to engage with the substance of the case.

The court then proceeded to consider each of the defendants’ submissions individually. The court said that “much of the documentation before the court is so unusual that at points it has been hard to follow.” Most of the defendants’ submissions did not require detailed consideration for the court to reject them, as they were simply not based on a valid legal or factual proposition.

The court also proceeded to consider some relevant case law that arose based on the defendants’ submissions. The cases dealt with issues such as the right to transfer entitlement to enforce an order for possession (Bank of Ireland Finance Ltd v. Browne Unreported, High Court, Laffoy J., 24th June 1996) and the non-engagement of Article 8 ECHR rights in possession proceedings (Launceston Property Finance Ltd v. Burke [2017] 2 I.R. 798).

Conclusion

The court determined that the plaintiff was entitled to an order for possession. The court declined to put a stay on the order because it would probably be another 18-24 months before the order could be enforced. The judge made a final plea to the defendants to “just do the sensible thing” and engage with Start to keep their home.