The Land and Conveyancing Law Reform (Amendment) Bill 2019 (the “Bill”) proposes to broaden the factors that the courts can consider in refusing orders for possession sought by lenders.

The Bill has its roots in the Keeping People in their Homes Bill, 2018, introduced by Kevin “Boxer” Moran T.D., as a private member’s bill. However, the Bill does not go as far as Mr Moran’s bill and, for instance, does not require disclosure of the price paid by a purchaser of the loan.

Background

Introduction

In light of the decisions made in the case of BTI 2014 LLC v Sequana SA [2019] EWCA Civ 112 (the Sequana case), consideration may need to be given to the interests of creditors when declaring a dividend. The Court of Appeal in the Sequana case concluded that the payment of an otherwise lawful dividend constituted a transaction defrauding creditors under section 423 of the UK’s Insolvency Act 1986 (IA 1986).

Background to the Sequana Case

In 2018 the Supreme Court delivered its much-awaited decision in the case of SPV OSUS Ltd v HSBC Institutional Trust Services (Ireland) Ltd & Ors where it confirmed that the assignment of a claim is unenforceable in Irish law unless the assignment is ancillary to a bona fide transaction or the assignee has a genuine commercial interest in the assignment.

Overall 2018 has produced a number of positive judgments from the perspective of lenders and insolvency practitioners.

In particular, the courts delivered many useful judgments disposing of numerous challenges to the enforceability of loans and security and, also, restricting abuse of the courts’ processes.

Contemptuous McKenzie Friends

Does a creditor’s good-faith belief that a discharge injunction does not apply to its debt preclude a finding of civil contempt? Due to a circuit split, the U.S. Supreme Court was asked to decide this issue.

Are a licensee’s rights to use a trademark safe if the licensor files for bankruptcy and rejects the trademark license? This is a question the U.S. Supreme Court may resolve later this year.

Many of the statistics reflecting trends in Irish economic activity have remained constant over the past few years. GDP has been rising, unemployment has been falling and inflation has remained fairly static. The recent publication of the Courts Service Annual Report 2017 confirms a similar consistent pattern in creditor litigation and enforcement, for the calendar year 2017.

Default judgments

Must the legal owner of securitised debt and related security disclose in proceedings it brings that it is a bare trustee for the beneficial owner? In addition, is that trustee obliged to join the beneficial owner as a party to those proceedings?

Section 523(a)(2)(B) of the Bankruptcy Code provides that a discharge under the Bankruptcy Code does not discharge an individual debtor from any debt for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by use of a statement in writing that is materially false, respecting the debtor’s financial condition, on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied, and that the debtor caused to be made or published with intent to deceive.

In Bakery and Confectionery Union Fund v. Just Born II, Inc., the 4th U.S. Circuit Court of Appeals on April 26, 2018, affirmed the district court’s judgment requiring Just Born to pay delinquent contributions into the Bakery and Confectionery Union and Industry International Pension Fund (the Pension Fund), as well as interest, statutory damages and attorneys’ fees.