Freeman Megamerge

Do they!! are were they just covering there a. Plus she was found sane

Mr Justice Max Barrett put it succinctly. It was, in many ways, an unfortunate case. After all, a husband and wife were one the cusp of losing their house after falling into mortgage arrears of just €15,000, a sum the High Court judge said should be repayable if it was spread over enough years to make the monthly repayments manageable.

However, the case of Christopher and Elizabeth Cussen is about more than just numbers. It is a textbook example of how not to deal with both a lender and also a court action. Judge Barrett sets out the backstory and the 27 arguments that the couple had put forward to stop a repossession action by Start Mortgages, which acquired the couple’s mortgage from Permanent TSB.

The judgement, and the facts of the case that it explores, are both sobering and staggering. They reveal how the couple took advice from unregulated charlatans who sold them a “crock of nonsense” that there was some “trick of the legal loop” through which they could avoid paying their debts. “Such people are fraudsters who, like all fraudsters, prey on the vulnerable,” according to Judge Barrett.

In this case, the judge granted the repossession order, but noted that it could be between 18 and 24 months before it would be enforced upon. During that time, he appealed to the couple to engage with MABS and their lender to work out a deal, stating that Start was still prepared to “play ball”.

We talk, rightly, a lot about the hard-line approach of lenders and vulture funds. But this case explores the other side of the equation, when borrowers seek to do everything possible to avoid paying money that everyone else accepts is due.

So, just how did the couple approach the issue with Start Mortgages, and what arguments did they put before the court to advance their case?

Litigation by filibuster

Justice Max Barrett was not entirely sure if the couple had taken advice directly from so-called charlatans, or just downloaded documents from the internet that had been drafted by them. Either way, it followed a familiar playbook as the couple sought to explain why the action was meritless despite not making any effort at all to repay any money since 2017.

“While they have come up with all manner of complaints about the procedures and processes employed against them, they cannot get around the ‘elephant in the room’ which is that they freely borrowed money, they freely secured those borrowings on their home, those borrowings are contractually required to be repaid, and, regretfully, if they continue to refuse to pay back what is owing, they may yet lose their home,” according to the judgement.

The judge went through some “oddities” of the documents that had been furnished by the couple as part of the action. One document was headed: “NOTICE TO AGENT IS, NOTICE TO PRINCAPLE IS, NOTICE TO AGENT”. Judge Barrett said it was a mis-spelled statement that “seems designed to look official but makes no sense: Who is the agent/principal of whom mention is made and what on earth is the purpose of the notice?”

Another document purported to require court officials to answer questions within a stated timeframe, asserting that otherwise the court official is stated to agree with whatever idea is being advanced. The judge said that in real life, “it is simply not possible to bind a State official by writing a letter offering a point of view and say ‘Unless you answer my questions by X date, you will be taken [by whom?] to agree with my point of view’. Private persons do not enjoy such powers of coercion”.

Another document invoked irrelevant religious documentation, including this phrase: “The MOTO PROPRIO of francis is in full force and you are not immune from the criminal sanctions associated with same”.

Rebutting this argument, Judge Barrett said that ‘motu proprio’ is a form of papal document and “the current Catholic pontiff – presumably the ‘Francis’ to whom reference is made, albeit using a disrespectful small ‘f’ – may be an esteemed gentleman but he has nothing to do with the enforcement of debts owing under Irish contract law and no role in Irish criminal law or in Irish law more generally”.

The judge also noted a “blizzard of bewildering documentation” unleashed by the couple on Start Mortgages as part of these proceedings, something that counsel for Start referred to at one point as “litigation by filibuster”.

The case began in the Circuit Court, before being appealed up to the High Court. And, again, it is worth stressing that this is over €15,000.

A defence of 27 parts

This was just the start of it. When the matter reached court, the couple put forward dozens of different arguments to support their defence. To his credit, Judge Barrett has done his best to identify all of them, and his judgement outlines 27 different arguments made by the couple over the course of the legal action.

However, each of the 27 had one thing in common – they had nothing to do with the debt due. “A striking feature of the arguments made by the defendants throughout the proceedings is the continuing effort never to engage with the substance of what must be engaged with, viz. their continuing default on their loan obligations. That is all that the mortgagee is concerned with, and that is what the defendants have never properly addressed,” according to Judge Barrett.

I would not normally work through each of the 27 arguments, but I think it is useful context as it gives a real insight into what some mortgage charlatans are peddling to struggling and impressionable borrowers.

Argument 1. That the Circuit Court did not have jurisdiction.

This was straightforward. The court did in fact have jurisdiction.

Argument 2. That sending unanswered letters to the Circuit Court President and the County Registrar renders the within proceedings deficient.

Once Circuit Court proceedings commence, there are formal processes in place whereby parties file and exchange documents and proceed with their case. Judge Barrett said these formal processes exist to ensure maximum fairness and that it “was not for the defendants to invent their own procedures, write letters setting timelines for the reply, and then claim that because their self-invented procedures were not complied with, this somehow robbed the Circuit Court of jurisdiction”.

Argument 3: That filing a standard financial statement was not a mortgage obligation.

This point relates to a statement required by the Central bank in the event of a mortgage being restructured, where the borrowers outline their financial position. Judge Barrett said it was “a most strange position for defaulting mortgagors to adopt that they should state in effect, ‘Yes, we borrowed money; yes, we have defaulted; but no, we won’t give you a statement of my financial position so that you and we can discuss, like responsible adults, how best to proceed’.”

Argument 4: That the defendants did not consent to the within proceedings.

Elizabeth Cussen contended that because she had not consented to these proceedings they could not properly be brought. “The proposition need only be stated to see that it is wrong,” the judge said.

Argument 5: That the term “principal private residence” is not defined in the Act of 2013.

This contention is correct. However, the judge said thew was no doubt that the mortgaged property is the ‘principal private residence’ of the defendants, and it was acknowledged by them to be such in an affidavit.

Argument 6: That there has been a breach of the Unfair Terms in Consumer Contract Regulations.

Judge Barrett said he had read all the relevant documentation and is unable to see a single term that could properly be described as unfair in how it operates between the parties to these proceedings.

Argument 7: That the defendants have not had opportunity properly to defend these summary proceedings.

The judge pointed out they had – both at Circuit Court level and again in the High Court.

Argument 8: That there have been breaches of human rights law and international instruments.

Amid all this mention of rights, the judge said there was “one right which has very clearly been breached here, which is the contractual right of Start Mortgages to be repaid monies that were lawfully loaned in a lawful transaction that the defendants lawfully and freely participated in”.

Argument 9: That sight of original mortgage documents has been refused.

Barrett noted that there was no ‘magic’ to original documents and that “even if original loan/mortgage documents were lost or destroyed, a lending institution could proceed on copy documents (or on other evidence of a transaction): it would still but have to establish an outstanding contractual liability on the balance of probabilities”.

Argument 10: That the Master made some comments favourable to the defendants.

Out of kindness to the couple, the Master of the High Court, at an earlier stage of these proceedings, made some comments favourable to them. “The court is not bound by those well-intentioned remarks,” the judge said.

Argument 11: That the benefit of an order for possession cannot be assigned.

It can, according to Judge Barrett.

Argument 12: That the property (and the charge on same) has not been registered with the Land Registry.

It had been registered.

Argument 13: That there was undue influence at play in taking out the credit and effecting the mortgage.

This point was mooted in an affidavit of Elizabeth Cussen and it was not clear to the judge whether she means that she was unduly influenced by her husband or vice versa. “However, the parties enjoyed the benefit of legal advice as regards the execution of the mortgage, so this argument does not stand up to scrutiny,” the judgment states.

Argument 14: That there has been some (vaguely referenced) GDPR breach by Permanent TSB and/or Start.

The court did not know if there has been such a breach. However, the judge said that that is a matter for a stand-alone complaint that does not impact on these proceedings.

Argument 15: That legal costs were added to the arrears outstanding.

This was an action for possession, not for summary judgment and so the focus of the court was on whether there have been no defaults in the making of the monthly repayments and not the exact figure owing.

Argument 16: That there was a contretemps with a summons server.

The judge accepted that there was a form of disagreement with a summons server. However, an order for substituted service was later obtained and service was duly effected.

Argument 17: That there was non-compliance with the Code of Conduct on Mortgage Arrears.

The evidence before the court was there the lender had complied with the code.

Argument 18: That Mr Cussen was handling matters with the mortgagee, not Ms Cussen.

According to the judge: “At all times correspondence was sent to Mr Cussen and also to Ms Cussen. So Ms Cussen was placed by the mortgagee in a position where she knew how matters were proceeding and could decide herself how best to proceed. Even at the hearing of the within proceedings Start continued, to use a colloquialism, ‘to hold out the olive branch’ that Ms Cussen could seek to engage with Start if she wished”.

Argument 19: That Start is not the right plaintiff.

All the paperwork was in order in relation to the loan transfer from PTSB to Start. Therefore, Start was the right plaintiff.

Argument 20: That the mortgage pre-dates the acceptance of the loan.

Factually, this was not the case, and no monies were advanced prior to the acceptance.

Argument 21: That, up to 2017, some (in truth, notably limited) efforts at repayment were made post-default.

The relevant point is that the requisite number of defaults occurred for the within proceedings to ensue. “The problem for the defendants is that they never in any meaningful sense engaged with the mortgagee as regards the repayment of the outstanding arrears,” the judge said.

Argument 22: That the mortgagee engaged in reckless lending.

There is no tort of reckless lending presently known to Irish law and it is not within the competence of the courts to invent such a tort, the judge stated.

Argument 23: That Ms Cussen gave some indication of wishing to speak with Start Mortgages.

The judgement states: “As the court has now repeatedly stated, it was made expressly clear to Ms Cussen in court that she can still re-engage with Start: to this time, she has elected not to do so.”

Argument 24: That MABS indicated that it would only assist when the possession order was obtained.

This was a point made by Elizabeth Cussen in her submissions but was not supported by any evidence. “What it does know is that even if this was said to Ms Cussen (and the court has no idea if it was), it has no impact on the within application,” Barrett said.

Argument 25: That Start has unfairly sought to avail of a fast-track procedure.

The judge said that at any time “following on the issuance of that Civil Bill, the defendants could have sought to engage properly with the mortgagee, they could do so still, and yet they have failed to do so”.

Argument 26: That the court should have regard to certain general observations of the ECB.

ECB observations, though clearly emanating from an esteemed body, are not determinative of parties’ rights in a possession application, the judge said.

Argument 27: That Start may have difficulty exercising a right of way vis-à-vis the mortgaged property should it enter into possession of same.

“This is an issue for another day, not for these proceedings,” the judge said.

A window of opportunity

Summing up the action, the judge encouraged the couple to engage properly with MABS and seek legal aid, adding that “there may still be a means of resolving matters without them losing their home”.

He stated:

“As a rule of thumb, there will likely be about 18-24 months before the possession order that the court will issue pursuant to this judgment will fall to be enforced. The defendants thus have a final window of opportunity to do as they ought to have done before now, which is to engage properly with the mortgagee, engage properly with MABS, and perhaps also seek legal aid. Though they are not assured of getting what they want if they proceed as just indicated the unattractive alternative, if they proceed in a manner akin to how they have thus far proceeded, is that, regretfully, they stand to lose their family home.”

We have yet to witness the tsunami of repossession that many expected. This is largely due to banks and borrowers working on a solution. However, as this case shows, when charlatans offer a “crock of nonsense,” there is little a bank or a court can do to stop a repossession.