The application for possession was heard by the County Registrar at Tullamore Circuit Court
A LENDER is trying to take back a woman's house in Offaly even though the property was damaged by pyrite and she is paying the bank monthly.
The woman being pursued by Start Mortgages DAC is paying the equivalent of the tracker rate each month, a move which the lender disagreed with, her solicitor told County Registrar James Seymour in Tullamore.
An order for possession was sought by a solicitor acting for Start Mortgages DAC at a sitting of the registrar at Tullamore Circuit Court last week.
The application was opposed by Dublin-based solicitor Gerry Dunne who appeared for the borrower by video link.
Mr Dunne said the house was effectively a family home because it was owned by the defendant and her daughter lived there.
The arrears were less than €20,000 which were “not a hugely significant amount for a 2003 mortgage”, Mr Dunne said, and his client had been fully engaging with the bank and paying every month at the equivalent of a tracker rate though there was a “big dispute” about her entitlement to that rate.
He said a settlement meeting had been proposed by the borrower as far back as December 2018 but it had been refused.
The defendant believed she was entitled to a tracker rate as she had been offered one at an earlier date but then it wasn't made available to her when she wanted to avail of it.
He said there would have been no arrears if the woman had been on the tracker rate and negotiations with the bank were ongoing but nonetheless they were in court making an application for possession.
The first letter his client had received in 2017 was seeking the full amount of the balance including the arrears and he said that while technically the monies may have been due, it was “evidence of the unreasonable approach from the outset”.
The arrears at that point were around €10,000 but Start sought the full amount of nearly €100,000, said Mr Dunne.
He said a “very relevant” factor in this case was that the house “turned out to have pyrite” and that “essentially” made the house worthless until it was resolved.
Most of the remedial works had been carried out but there was an ongoing dispute in relation to aspects of those works.
Mr Dunne said “rightly or wrongly” his client believed that because of the pyrite, the bank should share the burden of “what happened to her house, which is their security”.
The solicitor said the defendant also believed that with all its resources the bank could have carried out due diligence at the time the mortgage was being taken out and discovered “that stone from a particular quarry was being used in the construction”.
The registrar Mr Seymour said he would not like the bank “to be taking that sort of role in every house” because then they probably wouldn't give a mortgage for anything.
He was told that the defendant was paying €426 per month to Start and the contracted payment was €686.59.
Mr Dunne said the matters had already been raised with the financial services ombudsman and even while that process was going on his client was still getting threatening letters from the bank and solicitors.
He said the bank's solicitors had been told since 2018 that the proceedings should either never have been issued, or should have been struck out and discontinued “long ago”.
The borrower's solicitor also said the bank “on their own admission” had breached data protection legislation by sending details to a third party, including her mortgage account number which had caused “very significant stress” to the woman.
Mr Dunne said the lender was required by the Central Bank to deal with customers on a fair and equitable and reasonable basis and “we would certainly submit this has not happened”.
He said the bank had even applied its legal costs to the amount it said was due but had to withdraw that because it was not entitled to do so without a court order.
Mr Dunne applied for the proceedings to be struck out and costs awarded to the defendant.
Mr Seymour said he noted on a bank statement that some of the costs had been refunded and he was concerned that while payments were being made to the bank by the woman, “these cases can't go on for ever”.
The registrar said that because the defendant was able to make a payment each month and it was “not an insignificant” one, she should consider applying for insolvency.
“There is effort being made and there are payments being made and that is an important factor,” said Mr Seymour.
He adjourned the matter to the sitting of the County Registrar in February, 2022 for the defendant to take advice on applying for personal insolvency and stressed that he would like to hear then that she had gone that route.
He refused the application for possession and also made no order on a request from Start's solicitor for another standard financial statement. Mr Seymour said that the arrears, though not enormous, were still mounting and remarked: “I wouldn't like to be trying to clear them.”
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