This briefing summarises recent legislation, cases and trends relevant to ongoing efforts to resolve the mortgage arrears crisis.
Recent Legislation
Recent legal and regulatory developments relevant to the mortgage arrears crisis have included:
Freeman V Bank of Scotland plc, Simon Davidson and Lloyd Daly & Associates Ltd [2016] IESC 14
This Supreme Court decision is as a result of an appeal from a judgment of McGovern J in the High Court which was delivered on 29th May 2014.
Background
In Delaney v AIB [2016] IECA 5, Court of Appeal, Peart J, 28 January 2016 the Court of Appeal held that a bank had no duty of care to advise customers on the wisdom of a commercial transaction.
Facts
In a significant recent judgment, the High Court has set aside an extension of a protective certificate issued to a debtor under the Personal Insolvency Act 2012 on the grounds of material and culpable non-disclosure by a personal insolvency practitioner.
Letters of demand frequently request a party to comply with certain obligations by “close of business”. However, due to the uncertainty surrounding what this phrase means, the Supreme Court was recently asked to determine what time is close of business.
Background
A mortgage deed provided that money owed by the borrower to the bank was repayable on demand and that if a demand was not satisfied, the bank could enforce its security by appointing a receiver.
A recent Supreme Court decision looked at the effect of non-registration of the change of ownership of a charge on its enforcement.
Infrastructure & Economic Development
This briefing sets out some of the key points of the 2016 Programme for
Government, which includes a wide range of policy proposals in areas
such as infrastructure and economic development, public administration,
constitutional change, financial services, taxation and employment law and
industrial relations.
It is expected that the Government’s Legislation Programme will be
published soon, setting out the legislation that the new Government will
promote in order to give effect to the Programme for Government.
In a recent High Court decision, the validity of the appointment of joint receivers by ACC Loan Management Limited by deed under seal was upheld, and an order for possession in favour of those receivers was made.
The High Court recently determined the extent to which a secured creditor must comply strictly with the formalities set out in a security instrument when executing a Deed of Appointment of a receiver. The Court ruled that strict compliance is required and that, in this case, this had not occurred.
Background
In a recent challenge to the appointment of a Receiver, the High Court was asked to consider the validity of a Deed of Appointment and whether it complied with the bank’s own mortgage deed. The Court found that failing to comply with the format set down in the mortgage deed can have drastic consequences.
Details of the case