by nacainte on awaken-longford
One of the most important cases affecting in Ireland – Bank of Ireland Bank of ireland Mortgage Bank v Finnegan & Anor which was heard earlier this year, the issue of lenders applying to the Circuit Court using the Rateable Valuation of a private domestic dwelling house was dealt a fatal blow and exposed lenders for the reprehensible practice employed in conjunction with the legal profession to hoodwink the Circuit Court into believing it had a jurisdiction to deal with these cases which in fact it did not have, to take possession of private properties, the judgment is here:
I would like to transcribe one paragraph from the conclusion of Murphy J. in the judgment above which describes succinctly the sleight of hand which Financial and Legal compatriots employed in this matter:
“It appears to the Court on the evidence, that the plaintiff and others have devised and used an ad hoc non-statutory process which is devoid of legal effect, for the purpose of persuading the Circuit Court that it has a jurisdiction which it does not in fact enjoy. This is a matter of serious concern to the Court. The standard letter issued by the Valuation Office in this and other cases may be derived from the type of letter issued by them in respect of rateable properties such as off licences which are in the process of being valued, but the fact is that the content of these letters, however unintentional, is misleading when applied to domestic premises. The letter states “I refer to your application for a certificate showing the rateable valuation for the above property. I regret that I am unable to issue such a certificate as the property is not as yet valued for rating purposes”. The clear import of the terminology used is that the property is rateable but not yet rated, when as the Valuation Office well knows, the property is by virtue of the Act not rateable at all. In so far as this practice may be ongoing it should cease forthwith.”
In a further development and one which affects many Irish families who may be either dispossessed already of their family home or waiting for a repossession order already granted to be enforced over their family home, a case which appeared in the Master’s Court in the High Court in Dublin is one which I would appeal to folks to pay attention to.
Please do not, for one second, believe that the above mentioned judgment will automatically provide a protection to your home if the repossession order was granted by the Circuit Court whose jurisdiction was established using the rateable valuation approach, if you are not sure refer to the originating summons and the endorsement of claim attached which will clearly identify whether you are affected or not, the original summons is the first court document you will have received in relation to legal action over your home.
The case in the Master’s Court on Tuesday concerned a woman who had a possession order granted over her family home in the Circuit Court in 2014 using the rateable valuation, her home was built in 1999, aware that something was wrong this order was appealed to the High Court in early 2015 but the defendant’s health, both physical and mental had deteriorated to an alarming level and as such she did not attend her own appeal which was heard in her absence and the order of the Circuit Court was upheld.
The Bank in question repossessed the home in September 2015 but armed with this knowledge this woman entered her family home and re-possessed it back from the Bank and remains there now, although there are proceedings in the Circuit Court which contain attachment & committal endorsements.
In short, this woman was seeking an extension of time in order to appeal again on the basis of the Murphy Ruling above, the Bank was strenuously opposing the application and at first appeared comfortable that the Courts of Justice Act 1936 would see them over the line and they argued against the right to have another appeal once a first appeal had been exhausted. Thankfully the Master and his innate sense of justice and common sense aligned with his encyclopedic legal mind prevailed and what he said is very important, he addressed two critical area’s
Cross Examination of Deponents of Affidavits (otherwise known as the competent witness)
Void or Voidable Court Orders – Rateable Valuation
In the original Circuit Court case the Judge in question agreed with the bank’s barrister that the matter should be heard on Affidavit evidence only and refused the defendant’s motion to cross-examine the deponent of the bank’s affidavit, here is what the Master had to say about that, this is direct transcript of the court proceedings from my notes unfortunately some of the conversation was inaudible to me but the substantive conversation is there:
Master(to counsel): When is a notice of intention to cross-examine an abuse of process?
Counsel; I…can’t answer that Master
Master: ok…well straight away she’s got grounds for appeal ….this order….the first order made on the 20th of January on enquiries, grants an order pursuant to a motion dated today 27th of May setting aside a notice of intention to cross-examine, the motion was issued way back in …2013 sometime, and it said the relief being sought was….here was a contention, to cross-examine constitutes an abuse of process, quite the reverse I feel… quite the reverse…it constitutes the essence of due process, does the circuit court judge not understand that, so I’ll hear you now (to Counsel).
Counsel: ….inaudible…. well it was directed that the whole matter be proceeded with by affidavit rather than by way of cross-examination….
Master: That’s…that’s…eh…a breach of due process
So in lay man terms, the refusal by a court to allow a defendant cross-examine the deponent of an affidavit drafted in support of the bank’s intention to repossess a home is a breach of due process, such ability by a defendant to cross-examination is the very essence of due process! but as we know, in the majority of cases this central element of due process is denied to lay people, who are already severely prejudiced by inexperience and a lack of knowledge of law and court procedure and expected to mount a defence against a full legal team representing the financial institution, or alternatively roll over and walk away.
In relation to the Bank’s ignorance of the Murphy J. ruling and what they ought to be absolutely clear of in their understanding of the matter, is that they proceeded to repossess this woman’s home in full knowledge that they were doing so using a VOID ORDER, the Master stated the following in respect of this and I am paraphrasing here:
The master was presented with a series of facts and he was asked to consider where the parties should go to from here, if anywhere, if he were to give advice to say the building society as to how to deal with the matter and it turned out that advice was wrong the building society could sue him, it’s the same with the defendants and so the extent to which he can actually advise a defendant is constrained by the difficulty that any Judge is offering advice with the full panoplies of the office behind him that’s the difficulty all he could say is that the text books are in favour of the defendants position here, the concept of “interim validity” is well-known to anybody who has studied administrative law he stated he used to lecture on it at Kings Inn’s for years, the situation in this case is that the order made by the Circuit Court Judge way back in January 2014 was valid at the time, it enjoyed what is known as “Interim Validity” that’s to say that it is valid until it is judged to be invalid, that may sound odd but that’s actually the legal position and the reason for that is we can’t have invalid orders floating around the place and people acting to their detriment and then discovering that the underlying document of title or whatever is suspect so if somebody bought the property from the building society and then the defendant just came along and legally said you shouldn’t have bought it because the title was dodgy, it was missing a piece, a missing piece of the jigsaw, so if somebody acted on foot of the invalid order, the order which enjoyed interim validity that would be an end to the defendants options because the invalid order would have if you like passed into history, it’s validity would be confirmed by the fact that parties acted on foot of it, in this case the building society had not acted on foot of it (the master was not aware at this point that the bank had acted on foot of it) so technically the position should be that if somebody seeks to repossess the property, the defendants property, let’s say the sheriff were to come long, the defendant could say hold on a second you can’t do that because the order is invalid and an injunction could be obtained restraining the sheriff from proceeding with the order, the fact of the matter is that the appeal Judge did not have these problems at the time (the Murphy ruling had not been made yet), any argument concerning the Valuation Act, so his decision is not dispositive of the allegation made regarding the valuation aspect, the Master just made comments up to here by way of an observation. It’s if you like a collateral challenge to the order for possession that has been obtained, if the building society seeks to enforce the order for possession, they could be met and answered by an injunction, the injunction can rely on the fact that the allegation of the defendant is that the order made by the Circuit Court Judge is invalid, then the issue will arise. he also then had to consider whether or not to allow an appeal, an extension of time for an appeal, there is such a thing as an error on the face of the record, that is to say, irrespective of any other consideration if he finds that the order being challenged is bad in law on it’s face then it should be capable of being appealed, he then found the order made by the Circuit Court Judge to bad in law on it’s face in that he set aside the application to cross-examine the witnesses, he said that this order is offensive to justice and so he extended the time for appeal, the building society may well be met with injunctive proceedings if they proceed to seek to continue with attachment and committal proceedings in the Circuit Court against the defendant because she has re-occupied the home, in closing he allowed three weeks to appeal.
So, in summary, any order made in the Circuit Courts of Ireland, anywhere in Ireland prior to the Murphy Ruling in Bank of Ireland Mortgage Bank v Finnegan & Anor which was delivered on the 20th of May 2015 in proceedings brought using the Rateable Valuation may well be void orders and have no effect, the key to knowing whether they are void or not is whether a Rateable Valuation Certificate exists or not, certainly if the home was built after 2002, that Certificate cannot exist.
What should you do if you fit into the criteria of either a person who has already lost their home or one who is awaiting a visit from the Sheriff on the basis of one of these Rateable Valuation Orders?
If it where me and I had been ejected from my home and I was prepared to fight and the Bank had not yet disposed of my home:
I would immediately re-occupy my home, go back in and change the locks.
I would file an application for time to appeal the original order
I would file an injunction against anyone responsible for attempting to eject me again.
If successful in my appeal I would file an action for damages against all concerned for illegally evicting me, either directly or indirectly from my home.
If I was still in may home and awaiting the Sheriff:
I would file an application for time to appeal the original order.
I would file an injunction against anyone attempting to eject me.
I would open negotiations with the Bank for an amicable resolution based on remaining in the home.
That’s just me of course.
Tuesday was a good day in the Master’s Court, I was proud to stand with this woman to support her in her hour of need along with my good friend Ben Gilroy, I have known her for several years and she has been a rock for many people, the effects of her war with the Bank of Ireland and ICS is very telling and this is the real tragedy of the entire matter, the castigation and relentless pursuit of a woman through the Courts, who committed no crime, by an institution who so clearly committed many many criminal acts but will never be held accountable in an Irish Court at least.
We live to fight another day and so on to the Appeal.
While this post was take from The Hub Irelands page its true source is : http://awaken-longford.com/2015/11/11/bank-of-ireland-ics-challenged-on-rateable-valuation-and-competent-witness-and-they-lose-again/ Awaken Longford