Court blocks repossession of home pending judicial review

A COUPLE who feared their home would be repossessed later this week over mortgage arrears have secured a court order preventing repossession pending the outcome of their legal proceedings.

Mr Justice Michael Peart yesterday granted leave to Peter and Anne Byas to bring judicial review proceedings challenging a county registrar’s order for repossession of their home at Navan Road, Dublin. The order was sought by the Educational Building Society over some €37,000 arrears on mortgage repayments.

The judge found the couple had made out the necessary “arguable” case for judicial review. The granting of leave to bring the proceedings would act as a stay on the order for possession, he added.

The couple are represented by the New Beginning group of lawyers and business people recently formed to support homeowners with mortgage difficulties.

In their action against the registrar for Co Dublin, Ireland and the Attorney General, the couple seek to quash the registrar’s order and want declarations that it breaches provisions of the Constitution and European Convention on Human Rights.

They claim the entrusting of powers to registrars to make such “severe” orders with far-reaching effects interferes with the necessity for proper administration of justice. 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 contended.

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

In an affidavit, Mr Byas, an unemployed business consultant and former publican, had said he, his wife and three children would have nowhere to live if the repossession proceeded.

“I am desperate and unable to see my way through this predicament,” he said.

The repossession order was made in May last by a county registrar but was stayed for six months and was due to expire this weekend.

The court had heard the couple bought their home at Navan Road 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, and this and two further loans – of €150,000 in 2006 and €30,000 in 2007 – were all secured on the property.

Mr Byas said he was initially not concerned about the borrowing, as he had expected he would be able to redeem shares in a London-based private equity firm. However, his shareholding in the company became worthless overnight when the company was liquidated.

As a result of these and other factors, including the wiping out 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 had mortgage arrears of more than €37,000, he said.

Mrs Byas recently procured part-time employment in the public service at 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 this week.

Mr Byas said they had attempted to sell their home but were unable to do so. He had made strenuous efforts to find employment but had been unsuccessful.