Mortgage cases often ‘David v Goliath’

Almost three quarters of people at risk of losing their homes in repossession cases did not have any legal representation when the case was before the court, according to a new study.

The snapshot study analysed cases that came before the courts last December and January and found that, in addition to some no-shows, 7% of people represented themselves in proceedings.

The Access to Justice and the ECB research report was carried out by the Centre for Housing Law, Rights and Policy at NUI Galway.

It looked at 2,396 mortgage cases over the two-month period and found that in 70% of those, those with mortgage arrears did not have legal representation.

In another 7% of cases, involving 168 people, those facing the financial institutions in court represented themselves.

Those who conducted the study also personally attended 150 cases and concluded that “ECB direct supervision of mortgage institutions in Ireland shows no respect for the human rights law or access to justice”.

In Ireland, ECB directly-supervised banks include AIB, Bank of Ireland, KBC, Ulster Bank and PTSB.

The report shows that ECB-directed entities are represented by a specialist solicitor and in most cases a barrister, in contrast to the lack of legal representation for most home debtors.

Padraic Kenna, director of the Centre for Housing Law, Rights and Policy, said it was often a case of “David versus Goliath”.

“Access to justice for all is core to the rule of law,” he said.

However, today in Ireland, we have a situation whereby home loan debtors are pitched against the legal resources of ECB-directed corporations, often in what appears like a David versus Goliath encounter. This is creating unprecedented pressure on Irish courts, which have relatively small numbers of judges.

“Circuit court judges and registrars make valiant efforts to explain procedures, processes and even the meaning of legal terms to people who are, at best, anxious and nervous and, at worst, suffering from serious illness, disorientated and emotionally vulnerable and fragile.

“This research raises important systemic questions in relation to access to justice in Irish courts in mortgage repossession or home loss cases.

“It also raises important questions as to whether the ECB, as an EU institution directly supervising the entities instigating these legal actions, is actively and knowingly undermining EU law, especially consumer and human rights law.

“Access to justice for home loan debtors has never been more important, but sadly, also never so inequitable, unfair and unattainable.”

Dr Kenna also referred to the tracker mortgage scandal where over 33,000 mortgage consumers were overcharged and which resulted in at least 100 households losing their homes.

He claimed it highlighted the systemic failure of the ECB and the Central Bank of Ireland to effectively promote EU consumer rights.

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