Couple seek to challenge repossession order

A couple facing eviction from their Dublin home within days over mortgage repayment arrears are seeking leave from the High Court to challenge a county registrar’s order for repossession of the property in favour of the Educational Building Society.

Peter Byas, an unemployed business consultant and former publican, says he, his wife and three children have nowhere to live when the six month stay on the repossession order expires on Saturday. “I am desperate and unable to see my way through this predicament,” he said in an affidavit.

Mr Justice Michael Peart will rule tomorrow on the application by Ross Maguire SC, for Mr Byas and his wife Anne, for leave to bring judicial review proceedings aimed at quashing the repossession order, made in May last but stayed for six months.

The couple also want a stay on the order pending the outcome of their case if they get leave.

The couple bought their home at Navan Road, Dublin 7 for €670,000 and put an additional €150,000 into renovating it. They took out a €470,000 loan with EBS in 2005 to purchase the house in 2005. Mr Byas said he took out a further loan of €150,000 in 2006 and of €30,000 (to top up a pension) in 2007. All the loans were secured on the property.

Mr Byas said he was initially not concerned about this level of borrowing as he believed at the time he would be able to redeem his shares, with an estimated value of £300,000 in Belgrave Trading Limited, a London based private equity firm, which

employed him as a business consultant. He had started out as a barman and previously owned three pubs, including Daly’s of Stoneybatter, all of which he had sold in the 1990s before working with Belgrave. He has also secured third level degrees.

Mr Byas said he was out on unpaid sick leave from Belgrave for some months in 2006 after cancer polyps were diagnosed on his bowel. It was only when he returned to work he became aware his contract was terminated and the company was in liquidation,due, he believed to heavy borrowing by two young sons of the managing director of BTL who had been appointed directors while he was absent. His shareholding in the company became worthless overnight and he was unemployed, he said.

As a result of these and other factors, including the wiping out due to the financial crisis of the value of shares held by him in a pension fund, banks and insurance companies, the couple were unable to meet their repayments and have mortgage

arrears of over €37,000, he said.

While Ms Byas recently procured part-time employment in the public service, her income is some €310 a week while her husband had been told he was ineligible for unemployment benefit as he was self-employed, the court heard. He intended to formally apply for benefit tomorrow

Mr Byas said they had attempted to sell their home but were unable to do so. He had made strenuous efforts to find employment here and in England so as to ensure his family could keep their home but had been unsuccessful. He was informed by a recruitment agent his credit rating was ruined by the order for possession and that was the reason for his failure to gain employment.

In their action against the County Registrar for County Dublin, Ireland and the Attorney General, the couple are seeking to quash the County Registrar’s order and also want declarations it breaches provisions of the Constitution and European Convention on Human Rights, including the rights to respect for family and private life.

They claim the order is not justified as necessary in a democratic society and is disproportionate having regard to the significance of the rights interfered with.

It is claimed the Registrar was effectively engaged in the administration of justice in making the order and such orders cannot be made by a person other than a judge. The entrusting of powers to registrars to make such severe orders with far-reaching effects interfered with the necessity for the proper administration of justice, it is also claimed.

The law and practice here concerning applications for possession of a family home on foot of a mortgage, because it is made in the absence of any independent consideration of the proportionality of the order in light of the rights of home dwellers, is incompatible with provision of the ECHR, it is submitted.

The couple, who are represented by the “New Beginning” group of lawyers and businessmen recently formed to support homeowners with mortgage difficulties, are also seeking declarations that provisions of the Courts and Officers Act 1995 and the

Circuit Courts Rules which assign powers to County Registrar’s to grant orders for possession are unconstitutional.