Legal Updates

Start Mortgages DAC v Cussen & Anor [2021] IEHC 531

The High Court has dismissed an appeal against a Circuit Court order for possession on the basis that the defendant’s case consisted of “wide-ranging” arguments that relied upon archaic legislation deemed to “make no sense as a matter of Irish law”.

Background

The defendants, who executed a mortgage over their property by way of security for a loan facility on 13 June 2007, defaulted in making payment of the monthly principal and interest from 21 May 2011 and, since 2017, had made no repayments whatsoever.

In their defence, Mr. Justice Barrett observed that the defendants made “strange assertions” relating, amongst other things, to their living status, claiming that they are a “living man & living woman” who are not “things to be salvaged”. The Judge described the approach of the defendants as “wanting in sense” and a “form of legal nonsense” having no relevance to the enforcement of debts under Irish law.

In his judgment, Barrett J. said it was particularly regrettable that the defendant’s had failed, throughout the process, to in any way address the ongoing default of their loan obligations. When the defendants first defaulted, they owed approximately €15,000, which was an amount in respect of which the Judge believed a settlement could have been reached. However, by the time of the High Court proceedings, the amount of default had increased to over €60,000, largely as a result of a failure on the part of the defendants to properly engage with the plaintiff or make any effort to repay the outstanding sum. While the court sympathised with the defendants’ circumstances, it noted that they cannot pay “absolutely nothing” to reduce still-mounting arrears.

Instead, they unleashed a “blizzard of bewildering documentation” in defence of the proceedings, referred to by counsel for the plaintiff as “litigation by filibuster”. Describing it as an unfortunate case, the Judge stated:

“There are unregulated charlatans ‘out there’ who are not regulated professionals and who do not act for a State body such as MABS but who purport to ‘assist’ vulnerable people in debt, selling them a crock of nonsense that there is some ‘trick of the legal loop’ through which one can readily and simply avoid the repayment of lawfully incurred debts. Such people are fraudsters who, like all fraudsters, prey on the vulnerable. Here, the defendants, people whose indebtedness made them vulnerable, either fell into the clutches of such charlatans or else downloaded documents that one or more of these charlatans has drafted and/or uploaded to the internet for the vulnerable to use”

The defendants’ appeal against the order for possession was ultimately dismissed with all 27 grounds of challenge being rejected. The court indicated it could not see how the plaintiff could have proceeded in any other way given “the hostile and, frankly, perplexing nature of the response” received from the defendants.

Comment

This decision provides a stark warning to borrowers against obtaining legal advice from unregulated bodies. The message from the court was very clear: That had the defendants engaged properly with the plaintiff, or a State body such as MABS or the Free Legal Aid Board, it was “eminently confident” that the debt could have been resolved.

In his conclusion, Barrett J. declined to grant a stay on the order for possession, noting that the plaintiff will be required to bring a fresh application to execute their order for possession which would give the defendants sufficient time to “do the sensible thing” and engage with the plaintiff with a view to arriving at a repayment solution that would not involve them losing their family home.

If you require advice in relation to the matters covered in this briefing please contact a member of our Banking and Financial Services Litigation Team.

The author would like to thank Gavin Murray for his contribution to this article.