Always seek legal advice,,,,,,,,,, We are an information site and acting on personal experience only. We do not claim any outcome or even predict one.
If the claim is for liquidated damages the indorsement of claim must specify the dept, the costs and the interest, it must also state that if paid within 6 days (haha) then no further action will be taken.
The Defendant must enter an appearance within 10 days, a simple form you can download or acquire from the court, a conditional appearance is best and for that you need The Hub – Ireland.
With the Summons comes their Affidavit.
Having entered an appearance you can then write to them (solicitors) and send them a notice for further and better particulars of the matters pleaded in the Civil Bill.
Form 6A Schedule B also see Order 17 – rule 4, CCR’s.
If the solicitor fails to reply to your letter you can hit them with a notice of motion for further and better particulars. Simple process that will compel them to furnish a reply.
Failure to comply may well get the case dismissed. The application can be made to the registrar, Order 18, Rule 4 (this must be done before you are added to the Circuit Court Judges List).
I think at this point we can safely say that waving your Plenary Summons at the Registrar will do nothing for you, and probably just piss them off.
You can get their Civil Bill interlocked with your Plenary but that will then be sent to the High with a date, so you have not kicked and ‘Can’ down any road! (we will come back to this later).
So you are in the Circuit Court, the Government moved legislation to allow banks to fast track us in CC and made it even cheaper!
What can you do to stop it? Nothing.
So sit back and use the time to practice and use it as a training ground for the real fight, the High Court. The District & Circuit Courts are commercial courts (see Dun & Bradstreet, all registered companies) and are not recognised in the Constitution.
We have established that you are going up against a government backed corporate system so it is fair to say you will probably loose. But here is the plan: get rid of the fear and get in the game, you now know the rules (there are no rules).
If you play the game you will get a good year or maybe more out of the Circuit Court (as stated, no rule and no predictions on our part), if you are still infront of the registrar then you can only loose your home by giving it up, it is called ‘consent’ but watch out here, they will try and trick you with words.
If you don’t consent then it is off to the CC judges list and you start again, yep, start again. But back to what we said, using words of trickery and this comes in the form of “you are under stress, so why don’t we put this back for a year?” you agree but what has just happened is you have put back the possession order, not the case or an adjournment and a few weeks hence you will receive your eviction order, date next year.
Back to the fight, if you continue fight the registrar then they must move you to the Judges list and as stated it starts all over again, are you treated any different or do you stand a better chance, a resounding NO, we have already said that it’s a commercial court. And as far as we can see the registrar is on a percentage of the days takings. And then she goes off and puts her sheriff’s hat on and signs the possession order, conflict of interest, na!
Back to discovery and helping your case, Order 32 CCR provides that you can seek discovery of documents, seems like a good place to ask the right questions! And seem the documents you have always wanted clear sight of.
1st seek voluntary disclosure by writing to the solicitor, giving them 14 days, if nothing comes back then it’s off for the notice of motion (form 31 Schedule B), as previously stated.
Notice to Produce documents:
OMG – yes another tool, Order 32 rule 4: requires the production for inspection any document referred to in the party’s actions (not photocopies) but be careful “referred to in the party’s actions”, start mentioning certain documents in your affidavit (however, rules are “no rule”).
Having said everything so far we must revert back to the fact that there are no rules for them and many for us! So we would hazard at a guess that you will loose and we have to state here and now “don’t panic”, two words sorts any situation out = “I Appeal” and following the correct procedure it is off to the High Court and a chance of justice.
But in the meantime there is still more you can do at Circuit level:
Calling a witness> you can compel the attendance of a witness, using form 14, schedule B, you have to pay reasonable travelling expenses but why not get the deponet (Affient) in the court for cross examination, if they fail to turn up it can be a fine, sentencing or the case struck out.
Notice to admit facts or documents:
You can call on the bank to admit certain documents: “substantiate clear chain of title for your mortgage” and more, much more (order 31). The order must be served 10 days before the trial date, so it is homework time yet again. “fail to prepared, prepare to fail”.
Off to the High Court (no): you can apply to the registrar to have the case transferred to the High Court but why would you? You would be given a date!!!! And you can have so much fun in the Circuit and gained a huge amount of time and practice.
Keep the ball in the air and learn, then take the knowledge you have gained to a court where you stand a chance: “I Appeal”, it is our constitutional right to appeal.
If you want to go straight to the High Court you can apply to the Master of the High Court in a notice of motion on a grounding affidavit but ‘see above’.
Order 23 – rule 9: “all documents relevant to the issues in dispute in the case”, the onus is on you to list the documents you want to see, go have fun with this one. Oh and that includes ESI (electronic stored information, did they not turn our note into an electronic version).
The Banker Book of Evidence Act 1879 – 1959:
Where a required is a bank official needs to give evidence regarding records, Order 63 – rule 1 (17) RSC allows for proof of banking records to be shown as properly certified copies and this is where the deponet (affient) must be a partner or officer of the bank, is he or she on the banks board?
Chain of title:
In order for a mortgage to be valid it must have what is known as perfection of chain of title. In other words there must be a clear unambiguous record of ownership from the time it was created to the present moment. Any lapse in that chain of title causes a defect in the instrument and makes it invalid.
So you are now armed with serious information, go use it.
Prior to the implementation of the Land and Conveyancing Law Reform Act 2009 lenders relied upon section 62(7) of the Registration of Title Act 1964 to apply to Court to seek a possession order when the borrower had defaulted on his loan.
The decision of Ms Justice Dunne that section 8 of the Land and Conveyancing Law Reform Act 2009 repealed section 62(7) of the Registration of Title Act 1964 means that lenders can no longer rely on section 62(7).
Since the Land and Conveyancing Law Reform Act 2009 came into effect on the 1st of December, 2009 the consequences of this decision and section 8 of the Land and Conveyancing Law Reform Act 2009 are as follows:
There is no right to apply to Court for an order for possession of property where the borrower entered into the mortgage prior to 1st December, 2009 and have fallen into difficulties after this date.
The Land and Conveyancing Law Reform Act 2009 does contain provisions (in Chapter 3) similar to section 62(7) of the Registration of Title Act 1964 but this will only be of use to lenders and banks in respect of mortgages taken out after 1st December, 2009.
The implications of this decision are far reaching as many of the mortgages which would now be in difficulty would have been taken out prior to 1st December, 2009.
The decision of Justice Dunne arose when four cases, in which orders for possession were sought, were heard together-
GE Capital Woodchester Homeloans Limited v Michael and Sinead Grogan
GE Capital Woodchester Homeloans Limited v Colm Mulkerrins
Secured Property Loans Limited v Tom Clair and Mary Clair
Start Mortgages Limited v Robert Gunn and Maura Gunn [2011 IEHC 275].
The details of each case above were slightly different but all four cases involved the mortgage being taken our prior to 1st December, 2009.
Effect of High Court decision
The net effect of the decision in these cases is:
Where the mortgage was taken out prior to 1st Dec. 2009 and go into default after that date the bank has no legal right to seek possession;
Where the mortgage was taken out prior to 1st December, 2009 and no letter of demand was issued prior to this date there is no right to seek possession;
Where the mortgage was taken out prior to 1st December, 2009 and legal proceedings were initiated prior to this date the bank can seek an order for possession.
Where the mortgage was taken out prior to 1st December 2009 and the letter of demand for payment was sent out prior to this date the bank can seek an order for possession.
This is one mans opinion: Legal Information is NOT the same as Legal Advice.
Educational/Entertainment information is provided to help users safely cope with their own legal needs.