What happens when 69 repossession cases come before the courts? Some notes from a Cork sitting.

Yesterday the Cork County Register held a session for civil possessions cases.  There were 69 cases heard (there were 68 on the legal diary with one additional case).  Of these, one was for a commercial premises, one was for farmland and one was a civil dispute over ownership of an asset that did not involve a loan contract. 

Thus there were 66 cases involving residential properties and lenders (mainly but not exclusively banks).  It cannot be determined how many of the properties are PPRs, BTLs or are vacant though this detail is given in some instances.  The 69 cases were completed in just over two hours so the session moves quite quickly and it can be bewildering for the borrowers who are present. 

When a case is called the applicant (i.e. the legal representative acting on behalf of the lender) states which action they wish to take.  There are three possibilities (where the number in brackets is the frequency among the 66 cases involving residential properties):

• Seek an adjournment to a later date (33)
• Proceed to seek the possession order  (32)
• Strike out the proceedings (1)

There were four reasons given by the applicants (the lenders) when seeking an adjournment:

• Have agreed or are negotiating an Alternative Repayment Arrangement (ARA) with the borrower (21)
• This is the first listing of the case so a Practice Direction Adjournment (PDA) is mandatory (5)
• The sale of the property is beginning or on-going (4)
• Notice of the proceedings has not been served on the respondent (3)

In all cases where the applicant requested an adjournment these were granted.  Most were to sittings in July or October later this year though in one case a ‘general adjournment’ was granted to no specified date unless the applicant wishes the case to be relisted.

In almost two-thirds of cases where an adjournment was sought by the lender it was because an alternative repayment arrangement had been entered into and time is being given to see if the borrower can adhere to that or because negotiations to put in place an alternative repayment arrangement are on-going.  Almost no details of these cases were discussed and they were concluded in less than a minute in most instances.

In fact, in most cases the respondent (the borrower) did not attend the session.

• Borrower present and/or represented (22)
• Borrower not present or represented: (44)

In two-thirds of the cases listed the borrower was neither present nor represented at the session.

The most common outcome among the 66 cases was for borrower to be absent and for the applicant to seek an adjournment on the grounds of an ARA being put in place.  This happened in 17 cases.  In 3 cases the adjournment on the grounds of an ARA was granted with the borrower being present or represented in court. And in one case the applicant wasn’t represented in court.

There were 32 cases in which the applicant wished to proceed to obtain the granting of the possession order.  In 15 of the cases the borrower was neither present nor represented.  Of the 32 cases that proceeded, an order for repossession was granted in 16 instances.  These are summarised in the following table. Click to enlarge.

In 14 of the cases where an order for possession was granted the borrower was absent.  In the two cases where the borrowers were represented (though absent) the orders were consented to.  In all cases where an order was granted a stay on their execution was granted for between two and six months with longer stays on those which were believed to be occupied.  This is nominally to give people time to find alternative accommodation but the time can also be used to reach agreement on an alternative repayment arrangement if one is possible.  Not all orders granted for possession result in the property being repossessed.  It is also the case that there was no discussion of what would happen with a shortfall, if any remained, after the value of the property was offset against the mortgage.

In all cases with orders granted the representative from the applicant made a request for costs and a €300 contribution was granted.  In the 14 cases where details were discussed the average amount of arrears was €51,500 and on most no repayment had been received for over three years with two instances of no repayment having been received in six years.

No borrower who was present or represented had an order for possession granted against them.  Their cases were adjourned by the County Registrar for one reason or another.  In these cases the County Registrar was excellent.  She listened patiently to the respondents, never interrupted and was helpful and understanding.  The pace of the proceedings can be bewildering but when a borrower was present the pace slowed right down.  The County Registrar allowed the borrowers the space to say what they wanted to but, in the main, kept the exchanges to the salient points.

All cases where the applicant sought to proceed with the order for possession and the borrower was present were adjourned.  In one such case no payments had been made since April 2009 with €76,400 of arrears accrued and the County Registrar emphasised the importance of making some repayments.  There were two other cases adjourned where the borrower was present and had not made any repayment since 2011 and these had €54,000 and €140,000 of arrears respectively.  In most cases where the borrower was present and the applicant wished to proceed with the case few details of the mortgage were confirmed.  There is a table here.

Some quotes from the County Registrar from various cases included:

• "Everyone needs to show goodwill; some repayments need to be made."
• "Nothing is possible without engagement; engagement involves making some repayments."
• "There needs to be a level of engagement; make interim payments."
• "It is helpful if one makes interim payments;  it doesn't have to be all or nothing."
• "I have little interest in making orders for possession but there has to be engagement."
• "Some money must be paid; take it one step at a time."
• "I am concerned to see few repayments; some repayments have to be made on a regular basis."

The County Registrar was clear and a number of times said "I don't want to be making orders for possession" and that these could be avoided by the borrower if regular payments were made.  It didn’t necessarily have to be the full payment but regular payments were taken as a clear signal of engagement by the borrower. 

In a small number of instances there were separate Family Law proceedings on-going involving joint respondents. In these cases the possession proceedings were adjourned by the County Registrar.  There was one case which was transferred to the “Judge’s List” for hearing in the Circuit Court.

So the summary of the 66 cases involving residential properties is:

• 33 adjourned by request of applicant
• 16 cases adjourned where applicant wished to proceed (15 to return to the County Registrar with one placed on the “Judge’s List”)
• 16 orders for possession granted (14 against absent borrowers, two consented to)
• One proceedings struck out

One implication of this is that there is a big difference between the stock and flow of cases.  The same cases are listed, and adjourned, repeatedly.

UPDATE: Another session was held on Wednesday 15th April at 10am.  The legal diary listing the 81 cases is here.  One of the cases did not involve bank lending.  There were 80 cases with various lenders listed as the applicant and it is assumed that all of these involved residential property.  It was hard to tell as most of the cases were immediately adjourned when called and all 81 cases were completed in less than three-quarters of an hour.

Starting with the initial action of the applicant a summary of the session is:

• Seek an adjournment to a later date (75)
• Proceed to seek the possession order  (2)
• Strike out the proceedings (3)

Across the 80 cases, borrowers were present and/or represented in 13 instances.  Of the 75 adjournments sought by the applicants the reasons were:

• Have agreed or are negotiating an Alternative Repayment Arrangement (ARA) with the borrower (7)
• This is the first listing of the case so a Practice Direction Adjournment (PDA) is mandatory (41)
• Notice of the proceedings has not been served on the respondent (27)

In one of the seven cases with an ARA the property, which is vacant, had actually been abandoned and was taken into possession by the lender.  This case was adjourned generally with no subsequent date fixed but should probably have been struck out.

In the two cases where the applicant wished to proceed the with the case an order for possession was granted.  These are summarised here:

This session was very different to the first one described above.  For more than half the cases it was their first time to appear in court since notice had been served on the respondents and a Practice Direction Adjournment is required at the first hearing.  In most instances these adjournments were to the end of July but in a few cases the borrower was present or was represented and a longer adjournment was requested.  In most of these the adjournment was to October.

It was also the case that around one-third of the cases could not proceed because notice had not been served on the respondents.  Various difficulties were outlined by the agents representing the applicants in serving notice on the respondents.  In many of these cases there were joint respondents and notice had been served on one respondent and not the other. 

In most instances the case was adjourned to July to give more time for notice to be served.  For some cases which had been listed on a number of previous occasions an application for “substitute service” to doing so in person was made (such as pinning the notice to the door of the property). As stated the 81 cases were dealt with in less than three-quarters of an hour as very little progress was made in the vast majority of them.

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