Actions over Mortgages must take account of EU rules.

Forbearance

ohnonotgmail wrote: »

because they purchased the loans at an even more substantial discount? Its pretty basic economics.

I don't see any other vulture fund offering such generous discounts, but maybe this article in the independent may provide a hint to you.



Repossesion bid by 'vulture fund' gets thrown out
Ann and Michael Reilly arrive at court where a judge struck out an application by a ‘vulture fund’ for possession of their home. Pic: Collins Courts1
Ann and Michael Reilly arrive at court where a judge struck out an application by a ‘vulture fund’ for possession of their home. Pic: Collins Courts
Ray Managh
October 5 2016 2:30 AM

A judge has thrown out a bid by a so-called "vulture fund" to repossess a couple's home after they discovered an error in Bank of Scotland's sale of their €170,000 mortgage to American-owned Tanager Limited.
Judge Jacqueline Linnane's decision to strike out Tanager's re-possession proceedings in the Circuit Civil Court may have a knock-on effect for attempts to take back other homes in mortgage arrears.Tanager Limited, of Grand Canal Quay, Dublin, is an American-owned private equity fund that snapped up more than 2,000 distressed home loans from Bank of Scotland Ireland in 2010.
When Michael and Ann Reilly, of Kilclare Avenue, Tallaght, Dublin 24, found out Tanager was seeking a court order for possession of their home on the basis of a default in repayments, Mr Reilly started probing the transfer of his mortgage to Tanager. He discovered his loan was with the Governor and Company of the Bank of Scotland which had been dissolved at the time. He had then been asked to sign a form to signify his mortgage was with Bank of Scotland Plc before it sold its distressed loans to Tanager.

Anyway, once again can we get back to the subject matter of this thread.

Robbo

Moderation: Unless people are going to post how a typical Irish mortgage might contain terms that bring it within the Directive or any decided case law on the matter, this thread isn't long for this world.

Forbearance, if you think something's off topic, you can use the "Report Post" function.

Forbearance

Robbo, thanks for that, will do in future.

chops018

I don't know why you posted what I assume is an copy and past job from a news article.

I can only assume that this is the link:

http://www.independent.ie/irish-news/courts/repossesion-bid-by-vulture-fund-gets-thrown-out-35105107.html

Anyway, the "vulture fund" probably just sorted out what needed to be sorted out and restarted proceedings. It's just a delay, and very bad to advise someone in who is in huge financial distress to be telling them to look in to some directive and put their hopes into it.

The OP asked how possession orders can be granted in light of "The EU rule imposes an obligation on courts in such cases, regardless of whether they are asked to do so or not, to examine the mortgage contract and decide if any of its terms are unfair."

In my opinion, the Court can simply rule that there is no unfair contract term in the mortgage. If the defendant(s) want to, then they can appeal all the way to the ECJ.

These days mortgage documents and conditions are drafted by the likes of the IBF and Central Bank would review all this. There's not a special place where bankers all go to decide how they can insert unfair clauses to repossess homes when a person defaults on paying their loan. I said in a previous post that I agree it's unfair that banks are allowed the let arrears rise sharply. This shouldn't be allowed. But I suppose they need some sort of incentive to make people as if there was no arrears then many people would more then likely just say, ah sure I won't bother paying for a few months, and there would be no penalty.

As Robbo said above, and I agree, we would really need to be discussing actual terms of a mortgage contract here and how it might come in the scope of the directive. I can't see any except the fact that they usually allow for sharp arrears to build up. But I doubt this is enough to have repossession orders to be set aside, it actually would support a repossession order further as the bank would be able to prove to the Court that the customer can't pay and a repossession order to sell the property and try to clear the customers outstanding loan would be the better option.

Forbearance

chops018 wrote: »

I don't know why you posted what I assume is an copy and past job from a news article.

I can only assume that this is the link:

http://www.independent.ie/irish-news/courts/repossesion-bid-by-vulture-fund-gets-thrown-out-35105107.html

Anyway, the "vulture fund" probably just sorted out what needed to be sorted out and restarted proceedings. It's just a delay, and very bad to advise someone in who is in huge financial distress to be telling them to look in to some directive and put their hopes into it.

The OP asked how possession orders can be granted in light of "The EU rule imposes an obligation on courts in such cases, regardless of whether they are asked to do so or not, to examine the mortgage contract and decide if any of its terms are unfair."

In my opinion, the Court can simply rule that there is no unfair contract term in the mortgage. If the defendant(s) want to, then they can appeal all the way to the ECJ.

These days mortgage documents and conditions are drafted by the likes of the IBF and Central Bank would review all this. There's not a special place where bankers all go to decide how they can insert unfair clauses to repossess homes when a person defaults on paying their loan. I said in a previous post that I agree it's unfair that banks are allowed the let arrears rise sharply. This shouldn't be allowed. But I suppose they need some sort of incentive to make people as if there was no arrears then many people would more then likely just say, ah sure I won't bother paying for a few months, and there would be no penalty.

As Robbo said above, and I agree, we would really need to be discussing actual terms of a mortgage contract here and how it might come in the scope of the directive. I can't see any except the fact that they usually allow for sharp arrears to build up. But I doubt this is enough to have repossession orders to be set aside, it actually would support a repossession order further as the bank would be able to prove to the Court that the customer can't pay and a repossession order to sell the property and try to clear the customers outstanding loan would be the better option.

Chops018 you do not have to assume anything as I stated in the post that the article was from the independent, the reason I cut and pasted it was so that readers of the thread can clearly see there is a problem with Tanagers security regarding title.

The vulture fund in question has not sorted out the problem and never will, do a little bit of research and that will be confirmed to you, before offering your eminent opinion on same. From other posts I take it you are in the legal profession ( won't hold that against you, even though their are more productive ways to make a living ) so please be advised that this is a legal discussion forum and giving legal advce is prohibited. What I would say, is that European Law forms a module in the FE1 exams, maybe readers should arm themselves with this law if they are in dispute with their lenders. Why do you think the Central Bank of Ireland added an addendum to the Consumer Protection Code 2012 regarding increased protections to variable rate mortgage holders, to increase consumer protection or to protect the banks to legal challenges to their variable rates (see ECJ case 143/13 Bogdan Matei v Volksbank SA and revert.) I might just cut and paste this determination and let the genie out of the bottle.

ReddySteady

OH My GOD, what a judgment.

chops018

Forbearance wrote: »

Chops018 you do not have to assume anything as I stated in the post that the article was from the independent, the reason I cut and pasted it was so that readers of the thread can clearly see there is a problem with Tanagers security regarding title.

The vulture fund in question has not sorted out the problem and never will, do a little bit of research and that will be confirmed to you, before offering your eminent opinion on same. From other posts I take it you are in the legal profession ( won't hold that against you, even though their are more productive ways to make a living ) so please be advised that this is a legal discussion forum and giving legal advce is prohibited. What I would say, is that European Law forms a module in the FE1 exams, maybe readers should arm themselves with this law if they are in dispute with their lenders. Why do you think the Central Bank of Ireland added an addendum to the Consumer Protection Code 2012 regarding increased protections to variable rate mortgage holders, to increase consumer protection or to protect the banks to legal challenges to their variable rates (see ECJ case 143/13 Bogdan Matei v Volksbank SA and revert.) I might just cut and paste this determination and let the genie out of the bottle.

You seem to have ignored most of my post, apart from assuming what I do or don't do personally/for a living, and then saying you won't hold it against me while qualifying this by stating there are better things to do for a living. Fair enough, you're opinion and all that. But absolutely ludicrous that you touch upon a point like that. I don't think I've assumed anything personal about you, and to be honest, I don't care. You say that EU Law is a module in the FE1 exams, you are correct, why don't you sign up to the FE1's, pass that EU law module with your knowledge of EU legislation and case law, qualify as a lawyer and learn the Rules of the Superior Courts and the EU courts and represent people in distress using your knowledge of this law you seem to keep referring to.

Next you mention the Consumer Protection Code. I suggest you look at the Code of Conduct on Mortgage Arrears, this is the main protection for home owners in distress, and as I said in a previous post, it provides a lot of protection for home owners and if this process is followed then it takes a couple of years before a repossession order is granted, plenty of time to engage with the lender and hopefully sort something out, be that surrender, restructure, sell, whatever the case may be. The Consumer Protection Code is only there or Buy to Let properties, so it's not as if the owner is being chucked out of their own home. So I am quite astonished as to why you're referring to this if it's home owners you want to try and protect. I am also quite astonished that you're paranoid and questioning the Consumer Protection Code by asking if it gives more protection to banks or customers, I think it does both, if you are genuinely trying to sort your situation then the legislation is there to help you, if you are fully non engaging then it is there to help the banks/lenders move the process along and protect their interests. I note people who argue the above points like you refer to how the banks were bailed out. Are they really that clueless that you think a fully functioning economy can allow a bank to collapse.

Again, I ask you to refer the readers of the thread to a direct example of a set of mortgage conditions that you feel are unfair? I tried to argue the fact that sharp arrears that may arise could possibly be unfair. You seem to be just spouting directives and EU case law that don't really have any relevance here. Even if you could try tie in the directive to a mortgage contract, or tie in an ECJ judgement on the matter to case-law here or again a mortgage contract here, then you might have certain arguments.

I actually agree with parts of the ruling in the case you referred me to, specifically this: "do not, in principle, cover the types of terms in the credit agreements concluded between a professional and consumers such as those at issue in the main proceedings, which, on one hand, allow, under certain conditions the lender unilaterally to alter the interest rate and, on the other hand, provide for a ‘risk charge’ applied by the lender." They make a good point, a lender shouldn't be allowed to potentially raise interest rates to whatever they like should markets change. I agree with this. They do go on to qualify their ruling though by saying "However, it is for the referring court to verify that classification of those contractual terms having regard to the nature, general scheme and stipulations of the agreements concerned and the legal and factual context of which they form part." So, realistically it has been left to the national court to decide on what scale that term was unfair. This ruling would not mean that one would have a repossession order set aside, it would just mean that a Court would not allow unfair interest rates to be applied.

Again, please refer the readers of this thread to a specific unfair term in an Irish mortgage? Are you trying to refer to the fact that vulture funds taking ownership of loans is unfair? If so, I actually agree with this funnily enough. But I do not agree that it means a customer should have repossession orders or Judgments set aside if they still owe a lot of money.

ReddySteady

Chop018, if I had you for my legal counsel I would have just handed my house over to Tanager, beware of the enemy within and all that. If you researched what happened to that couple that Forbearance referred to in his previous post, you would have seen that Judge Jacqueline Linnane ( Circuit Court Judge Dublin and not known for her softly softly approach to mortgagors in distress) berated the solicitors and barristers present, stating " I am amazed despite all the lawyers involved it had taken a lay litigant such as Mr O'Reilly to discover the error"

The error:

Mr O'Reilly discovered his loan was with the Governor and Company of the Bank of Scotland which had been dissolved at the time. He had then been asked to sign a form to signify his mortgage was with Bank of Scotland Plc before it sold its distressed loans to Tanager.
Judge Linnane said that in accordance with a Supreme Court decision relating to another case, Bank of Scotland Plc at the time of transfer ought to have been put on the land folio for the Reilly property and this had not been done.


Maybe it was a case of the solicitors and barristers involved turning their pompous heads the other way so as not to bite the hand that feeds them. If this is the case, then shame on them for eternity. Life is a long race but in the end it is only with oneself.

chops018

ReadySteady, yes, the Solicitors and Barristers should have noticed this. But as has been said earlier, the result of that case does not mean a free house for those. The money is still due and owing. It just means that the other sides legal team will have to sort out what needs to be sorted out and they will go again. Or possibly they might reassess and decide it's not worth it, I honestly can't say. But my point is, one little victory there is not some big precedent set meaning anyone who owes money should get a free house, which is what I felt is the theme of this thread.

ReddySteady

Chops018, here is the standard variable interest rate mortgage term in a BOI mortgage.

3.4 The Bank may vary the interest rate on the Loan up or down at
any time or times during the period of the Loan at its discretion.

Now, lets apply the Matei determination to this clause, in para 76 it states

"As regards the contractual terms at issue in the main proceedings and, first, those allowing the lender unilaterally to alter the interest rate, the question arises as to the foreseeability for the consumer of increases in that rate which may be made by the lender according to the criterion, which is prima facie not transparent, relating to ’significant changes in the money market’, even if that formulation is in itself grammatically plain and intelligible."


So in the Matei determination it states that the parameter of "signifigant changes in the money market is not tranparent" and therefore can be assessed as been unfair by a national court, then pray tell, how has BOI gotten away with their variable rate term not so assessed ? The answer is that the Court must assess possible unfair clauses of it's own motion whether a defendant has brought it to the courts attention or not, this has not happened. Think of all the repossession cases that BOI and the other Irish Banks have got away with because the Irish Judiciary have not complied with their obligations under the Treaty of Rome. Wow, need to get in touch with Gary Fitzgerald BL urgently and get this show on the road.

Forbearance

Touche

4ensic15

ReddySteady wrote: »

Chops018, here is the standard variable interest rate mortgage term in a BOI mortgage.

3.4 The Bank may vary the interest rate on the Loan up or down at
any time or times during the period of the Loan at its discretion.

Now, lets apply the Matei determination to this clause, in para 76 it states

"As regards the contractual terms at issue in the main proceedings and, first, those allowing the lender unilaterally to alter the interest rate, the question arises as to the foreseeability for the consumer of increases in that rate which may be made by the lender according to the criterion, which is prima facie not transparent, relating to ’significant changes in the money market’, even if that formulation is in itself grammatically plain and intelligible."


So in the Matei determination it states that the parameter of "signifigant changes in the money market is not tranparent" and therefore can be assessed as been unfair by a national court, then pray tell, how has BOI gotten away with their variable rate term not so assessed ? The answer is that the Court must assess possible unfair clauses of it's own motion whether a defendant has brought it to the courts attention or not, this has not happened. Think of all the repossession cases that BOI and the other Irish Banks have got away with because the Irish Judiciary have not complied with their obligations under the Treaty of Rome. Wow, need to get in touch with Gary Fitzgerald BL urgently and get this show on the road.

A case was taken on that point and lost in the Court of Appeal.

4ensic15

ReddySteady wrote: »

Chops018, here is the standard variable interest rate mortgage term in a BOI mortgage.

3.4 The Bank may vary the interest rate on the Loan up or down at
any time or times during the period of the Loan at its discretion.

Now, lets apply the Matei determination to this clause, in para 76 it states

"As regards the contractual terms at issue in the main proceedings and, first, those allowing the lender unilaterally to alter the interest rate, the question arises as to the foreseeability for the consumer of increases in that rate which may be made by the lender according to the criterion, which is prima facie not transparent, relating to ’significant changes in the money market’, even if that formulation is in itself grammatically plain and intelligible."


So in the Matei determination it states that the parameter of "signifigant changes in the money market is not tranparent" and therefore can be assessed as been unfair by a national court, then pray tell, how has BOI gotten away with their variable rate term not so assessed ? The answer is that the Court must assess possible unfair clauses of it's own motion whether a defendant has brought it to the courts attention or not, this has not happened. Think of all the repossession cases that BOI and the other Irish Banks have got away with because the Irish Judiciary have not complied with their obligations under the Treaty of Rome. Wow, need to get in touch with Gary Fitzgerald BL urgently and get this show on the road.

johnnyskeleton is that you?

blueythebear

The level of hype surrounding this area is crazy. The practical effect of the application of the Directive on Unfair Terms means that there will be numerous defences open to defendants. Any term found to be unfair (and this will be determined by the national court alone) will be excised from the contract and the contract will proceed in its' absence. The consequences will be very much dependant on the content of the contract...

For example, there is a variable interest rate clause referred to above that essentially permits the Bank to change the interest rate at will. This would be likely to be found to be unfair and would result in this clause being ineffective. However, this only means that the Bank could not change the interest rate on the mortgage. The Bank would be permitted to charge the original interest rate as set out on the loan which, given current interest rates would actually be likely to be higher than at present.

If I was a borrower in distress, I would be waiting with interest to see what the outcome is in the courts on this subject, but it is no silver bullet.

The references to Tanager above to my mind arise out of a totally different issue.

Forbearance

4ensic15 wrote: »

A case was taken on that point and lost in the Court of Appeal.

The case you refer to is the Millars v F.S.O co joined by Danske Bank A/S and it was most certainly NOT taken on that point. It was an appeal by the F.S.O. of a High Court decision in the Millars favour. Justice Peter Kelly and Justice Finlay Geoghegan delivered their " judgements " on same that raised quite a few eyebrows within legal circles. ( Putting a square peg through a round hole springs to mind ) Having reviewed the judgments I do not believe either Judges complied with their duty to assess the said contractual term at issue as being potentially unfair. The judges in question only made a determination in relation to the complaint that the Millars sent to the F.S.O., that is all. They did not assess Danske bank's mortgage contract as a whole in terms of it's possible unfairness. The Matei judgment states that such a similar term in nature should be assessed by a national court in terms of it's possible unfairness. This I am afraid did not happen. This reinforces what I have been saying, that the Irish judiciary has failed to carry out it's duties as required by European Law. How else is it that we are the only Member State in Europe that has no case precedent regarding unfair terms in mortgage contracts and yet as we speak, we have a Central Bank investigation into what can only be described as a sectoral wide deliberate misinterpretation of contractual terms within contracts by 15 individual lenders that has led to substantial overcharging of borrowers and indeed to some poor unfortunates losing their homes. As a character in the film, the outlaw Josie Wales famously said " Don't piss on my back and tell me it's raining."

Pat Mustard

Moderation note:

All posters should familiarise themselves with boards.ie rules and the Legal Discussion forum charter.

Backseat moderation is not allowed.

If any user has a difficulty with a post, they should report it and the moderators will attempt to deal with the matter.

Forbearance

chops018 wrote: »

You seem to have ignored most of my post, apart from assuming what I do or don't do personally/for a living, and then saying you won't hold it against me while qualifying this by stating there are better things to do for a living. Fair enough, you're opinion and all that. But absolutely ludicrous that you touch upon a point like that. I don't think I've assumed anything personal about you, and to be honest, I don't care. You say that EU Law is a module in the FE1 exams, you are correct, why don't you sign up to the FE1's, pass that EU law module with your knowledge of EU legislation and case law, qualify as a lawyer and learn the Rules of the Superior Courts and the EU courts and represent people in distress using your knowledge of this law you seem to keep referring to.

Next you mention the Consumer Protection Code. I suggest you look at the Code of Conduct on Mortgage Arrears, this is the main protection for home owners in distress, and as I said in a previous post, it provides a lot of protection for home owners and if this process is followed then it takes a couple of years before a repossession order is granted, plenty of time to engage with the lender and hopefully sort something out, be that surrender, restructure, sell, whatever the case may be. The Consumer Protection Code is only there or Buy to Let properties, so it's not as if the owner is being chucked out of their own home. So I am quite astonished as to why you're referring to this if it's home owners you want to try and protect. I am also quite astonished that you're paranoid and questioning the Consumer Protection Code by asking if it gives more protection to banks or customers, I think it does both, if you are genuinely trying to sort your situation then the legislation is there to help you, if you are fully non engaging then it is there to help the banks/lenders move the process along and protect their interests. I note people who argue the above points like you refer to how the banks were bailed out. Are they really that clueless that you think a fully functioning economy can allow a bank to collapse.

Again, I ask you to refer the readers of the thread to a direct example of a set of mortgage conditions that you feel are unfair? I tried to argue the fact that sharp arrears that may arise could possibly be unfair. You seem to be just spouting directives and EU case law that don't really have any relevance here. Even if you could try tie in the directive to a mortgage contract, or tie in an ECJ judgement on the matter to case-law here or again a mortgage contract here, then you might have certain arguments.

I actually agree with parts of the ruling in the case you referred me to, specifically this: "do not, in principle, cover the types of terms in the credit agreements concluded between a professional and consumers such as those at issue in the main proceedings, which, on one hand, allow, under certain conditions the lender unilaterally to alter the interest rate and, on the other hand, provide for a ‘risk charge’ applied by the lender." They make a good point, a lender shouldn't be allowed to potentially raise interest rates to whatever they like should markets change. I agree with this. They do go on to qualify their ruling though by saying "However, it is for the referring court to verify that classification of those contractual terms having regard to the nature, general scheme and stipulations of the agreements concerned and the legal and factual context of which they form part." So, realistically it has been left to the national court to decide on what scale that term was unfair. This ruling would not mean that one would have a repossession order set aside, it would just mean that a Court would not allow unfair interest rates to be applied.

Again, please refer the readers of this thread to a specific unfair term in an Irish mortgage? Are you trying to refer to the fact that vulture funds taking ownership of loans is unfair? If so, I actually agree with this funnily enough. But I do not agree that it means a customer should have repossession orders or Judgments set aside if they still owe a lot of money.

I thought the subject matter of the thread was " Actions over mortgages must take account of EU rules." I don't think, but I am open to correction, that this means only mortgages relating to principal private residences. I am sure mortgages in relation to BTL's would also have to abide by the same EU rules, or is there something you know that I have overlooked!

blueythebear

Forbearance wrote: »

I thought the subject matter of the thread was " Actions over mortgages must take account of EU rules." I don't think, but I am open to correction, that this means only mortgages relating to principal private residences. I am sure mortgages in relation to BTL's would also have to abide by the same EU rules, or is there something you know that I have overlooked!

If the borrower is acting as a consumer, then the CPC applies whether we are talking about mortgages relating to PPR's or Buy to Lets.

I have a question, if the Unfair terms directive applies but there are found to be no unfair terms (or no unfair terms that affect a Bank's right to repossess a property for nonpayment), it seems that the consensus is that there is an argument that EU fundamental rights should also be addressed. It's been a while since I looked at EU law at all, but if it is found that fundamental rights have been breached (and this is a big "if" on the basis of the wording of the rights to property in the Charter), surely the remedy is as against the State for failure to implement appropriate legislation to protect fundamental rights?

Forbearance

blueythebear wrote: »

The level of hype surrounding this area is crazy. The practical effect of the application of the Directive on Unfair Terms means that there will be numerous defences open to defendants. Any term found to be unfair (and this will be determined by the national court alone) will be excised from the contract and the contract will proceed in its' absence. The consequences will be very much dependant on the content of the contract...

For example, there is a variable interest rate clause referred to above that essentially permits the Bank to change the interest rate at will. This would be likely to be found to be unfair and would result in this clause being ineffective. However, this only means that the Bank could not change the interest rate on the mortgage. The Bank would be permitted to charge the original interest rate as set out on the loan which, given current interest rates would actually be likely to be higher than at present.

If I was a borrower in distress, I would be waiting with interest to see what the outcome is in the courts on this subject, but it is no silver bullet.

The references to Tanager above to my mind arise out of a totally different issue.

Blueythebear, if an unfair term is found within a contract, then the said unfair term must be removed, it cannot be amended. So for example, let's say that the said variable interest rate term referred to, is found to be an unfair term, then, the unfair term directive states that it cannot bind the consumer, so in the example you mentioned, the interest rate term would have to be removed. The question that then has to be asked is, can the contract continue to function without the unfair term. In this case, the answer is yes, however the lender can no longer charge interest on the loan.

blueythebear

Forbearance wrote: »

Blueythebear, if an unfair term is found within a contract, then the said unfair term must be removed, it cannot be amended. So for example, let's say that the said variable interest rate term referred to, is found to be an unfair term, then, the unfair term directive states that it cannot bind the consumer, so in the example you mentioned, the interest rate term would have to be removed. The question that then has to be asked is, can the contract continue to function without the unfair term. In this case, the answer is yes, however the lender can no longer charge interest on the loan.

I'm not proposing amending the term. I'm agreeing that the variable interest rate term will have no effect if found to be unfair but there will invariably be other clauses in the loan documentation that will be present that will allow interest be applied.

For example, most facility letters will set out basic information like the amount of the loan, the term and importantly, the interest rate as it applies at the outset of the loan. The result will be that the Bank will be likely able to charge interest as per the rate at the beginning of the loan and not at the punitive rate that is set out in the particular unfair term/clause.

4ensic15

blueythebear wrote: »

I'm not proposing amending the term. I'm agreeing that the variable interest rate term will have no effect if found to be unfair but there will invariably be other clauses in the loan documentation that will be present that will allow interest be applied.

For example, most facility letters will set out basic information like the amount of the loan, the term and importantly, the interest rate as it applies at the outset of the loan. The result will be that the Bank will be likely able to charge interest as per the rate at the beginning of the loan and not at the punitive rate that is set out in the particular unfair term/clause.

In a lot of loans the initial interest rate is high relative to current interest rates. The complaint is mainly that reductions in wholesale market rates are not being passed on. paying 6% when the bank was sourcing money at 5% might be reasonable but now people are bieng charged 4% when the bank is sourcing money at 1%.
Taking out the variation clause will do a fat lot of good in that common scenario.

ReddySteady

Blueythebear, if the specific variable interest rate clause that deals with variable interest rate payments during the term of the loan is found to be unfair, then as Forbearance has said, it must be removed, it cannot be amended. The bank cannot attempt to charge interest via the back door by trying to circumvent the directive, that in itself would be unconscionable and unfair and a breach of article 7 of 93/13/eec.

Forbearance

IMPORTANT UPDATE,

This morning High Court Justice Noonan addressed the court before the commencement of some possession cases and told the court that there were no Judges available to hear these cases. He informed the body of the court of the dictum "Justice delayed is justice denied". He said Ireland is now in breach of the European Charter of Human Rights, all matters were adjourned till late 2017. He informed those affected today, to take the matter up with the European Courts of Justice.

GM228

Forbearance wrote: »

IMPORTANT UPDATE,

This morning High Court Justice Noonan addressed the court before the commencement of some possession cases and told the court that there were no Judges available to hear these cases. He informed the body of the court of the dictum "Justice delayed is justice denied". He said Ireland is now in breach of the European Charter of Human Rights, all matters were adjourned till late 2017. He informed those affected today, to take the matter up with the European Courts of Justice.

Did all the cases all involve EU law - as in applying EU regulations or decisions or implementing EU directives?

I also assume you mean the EU Charter of Fundamental Rights.

Forbearance

GM228 wrote: »

Did all the cases all involve EU law - as in applying EU regulations or decisions or implementing EU directives?

I also assume you mean the EU Charter of Fundamental Rights.

How would I possibly know that ? However, what I do know is that every possession case before a court must be assessed by the court for its possible unfairness under European legislation, whether the defendant raises such an issue or not.

In relation to your assumption I meant the European Convention on Human Rights.

GM228

Forbearance wrote: »

How would I possibly know that ? However, what I do know is that every possession case before a court must be assessed by the court for its possible unfairness under European legislation, whether the defendant raises such an issue or not.

In relation to your assumption I meant the European Convention on Human Rights.

Odd that, the ECHR is an international treaty between the Council of Europe members and has absolutely nothing to do with the ECJ as it isn't national or EU law.

Even matters under the EU Charter of Fundamental Rights or other EU law can only be referred to the ECJ in relation to the non implementation of EU law - in applying EU regulations, decisions or implementing EU directives as per Articles 263 and 265 of the TFEU. You can't simply refer any matter to the ECJ, it's not possible under EU law.

Forbearance

GM228 wrote: »

Odd that, the ECHR is an international treaty between the Council of Europe members and has absolutely nothing to do with the ECJ as it isn't national or EU law.

Even matters under the EU Charter of Fundamental Rights or other EU law can only be referred to the ECJ in relation to the non implementation of EU law - in applying EU regulations, decisions or implementing EU directives as per Articles 263 and 265 of the TFEU. You can't simply refer any matter to the ECJ, it's not possible under EU law.

Maybe Justice Noonan, like a plethora of other Irish Judges, need to read up on the operations and functions of the institutions of Europe and the application of European law.

blueythebear

4ensic15 wrote: »

In a lot of loans the initial interest rate is high relative to current interest rates. The complaint is mainly that reductions in wholesale market rates are not being passed on. paying 6% when the bank was sourcing money at 5% might be reasonable but now people are bieng charged 4% when the bank is sourcing money at 1%.
Taking out the variation clause will do a fat lot of good in that common scenario.

That's spot on in that scenario...if variation of interest clauses are deemed unfair it is arguable that the loan reverts to the original interest rate which will often be higher than the present low rates! So in trying to defend themselves, a borrower may actually increase his or her liability...

blueythebear

ReddySteady wrote: »

Blueythebear, if the specific variable interest rate clause that deals with variable interest rate payments during the term of the loan is found to be unfair, then as Forbearance has said, it must be removed, it cannot be amended. The bank cannot attempt to charge interest via the back door by trying to circumvent the directive, that in itself would be unconscionable and unfair and a breach of article 7 of 93/13/eec.

Not sure why you're including your first sentence as I acknowledged that.

Bank is not slipping anything in by the back door. Almost all loan documentation will state the interest rate at the outset of the loan. It's part of the contract and if a clause allowing arbitrary interest rate changes is unfair....then then other clauses will dictate the interest rate applicable

4ensic15

Forbearance wrote: »

Maybe Justice Noonan, like a plethora of other Irish Judges, need to read up on the operations and functions of the institutions of Europe and the application of European law.

His comment was about delay in having cases heard, and was not specifically about mortgage cases. Excessive delay in having a case heard is a breach of the ECHR. Nothing to do with unfair contract terms.