Lender cannot repossess where breach of the moratorium required by the code of conduct on mortgage arrears, supreme court says

The Supreme Court has said failure to comply with the moratorium provisions of the Central Banks Code of Conduct on Mortgage Arrears by a lender can prevent a home being repossessed in a recent decision of Irish Life and Permanent Plc, Gemma and Kevin Dunne and Dylan Dunphy [2015] IESC 46.

The Supreme Court heard appeals of two cases against Irish life and Permanent Plc which were referred by the High Court Judge. The Dunnes had defaulted on repayments due to Irish Life and Permanent Plc and it appeared that Irish Life and Permanent Plc were entitled to recover possession of the property. As the Dunne were not legally represented and did not enter an appearance to the proceedings, there would be no enquiry that the lender had complied with the Code of Conduct on Mortgage Arrears. Judge Hogan referred these 2 cases on appeal due to various different views taken by High Court Judges on the question of legal status and consequence of compliance by lenders with the Code of Conduct on Mortgage Arrears in relation to repossession.

The Supreme Court was asked to consider:-

  1. As there is no sanction for failure by a lender to comply with the Code of Conduct on Mortgage Arrears does non-compliance with the Code affect a lenders entitlement to obtain repossession of a property
  2. If a lender has not complied with the Code of Conduct on Mortgage Arrears, depending on the type of breach can the Court refuse to make an Order for repossession and can any breach be rectified by a period adjourning or postponing the proceedings.

The Supreme Court said that regulated financial institutions must obey the Code of Conduct on Mortgage Arrears which forms part of the law pursuant to Section 117 (1) of the Central Bank Act 1989. When a lender is applying for a Court order for repossession of a private residence of a homeowner the Court may have to consider a situation where a lender is in breach of the Code. The Court said if an application for repossession brought by a lender is in clear breach of the moratorium that a Court could not aid the lender in these actions which are clearly in unlawful and in breach of the Code of Conduct on Mortgage Arrears and could not make an order for repossession in those circumstances. However the Court clarified that it will not have a role in deciding whether particular proposals should be accepted by the lender or in formulating a lenders policy in relation to mortgage arrears and in applying these or assessing as to whether these are reasonable as this is not its role. All proceedings for repossession should now contain a statement that the proceedings were commenced outside of the moratorium period. If the moratorium does not apply then this should be explained and a Court can consider what evidence it needs to be satisfied that there was no breach of the moratorium by a lender.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Recent Supreme Court Ruling re Repossession Proceedings relating to Residential Property”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

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