A Co Laois couple have been given leave to challenge the repossession of their home because, they say, their rights under European law have been breached.
In the landmark case, Geraldine and Martin Grant, Ballyroan, Portlaoise, say the County Laois registrar, failed to consider whether their mortgage contract with Pepper Finance Corporation was fair when granting a repossession order earlier this year.
Their barrister, Gary Fitzgerald BL, making the ex parte application in the High Court for leave to bring judicial review proceedings, told Ms Justice Margaret Heneghan the registrar should have considered the Grants' "fundamental rights" as set out in the European Charter of Fundamental Rights and as guaranteed in the 1993 European directive on unfair terms in consumer contracts.
In addition, the question of whether the repossession would be a “proportionate” remedy, given their circumstances, should have been considered before it was granted.
The couple, who are both on disability pensions, have lived at the family home for over 28 years – Mrs Grant since 1988 and Mr Grant since 1956. It was his childhood home. They have one adult daughter.
Papers setting out their case stated that in 2004 they took out a loan for €70,000 with GE Capital Woodchester Home Loans Ltd, secured on the home, to pay for insulation and new heating. At the time Ms Grant was earning about €400 a week and Mr Grant was involved in community employment schemes.
They were having difficulties meeting the repayments and in 2006 Mrs Grant lost her job, but got a job in a supermarket on a low-hour contract, earning €200 a week.
In 2007 they were cold-called by a broker and on foot of this refinanced the original loan and consolidated other debts, and this was also secured on the home. The loan for €130,500 was to be paid over 22 years. The total repayable would be €255,063.60 and monthly repayments would be €966.15.
They signed the loan papers in the presence of a solicitor appointed by the lender, for the lender, but were given no legal or financial advice themselves..
They began having difficulties meeting repayments in 2008 and by May 2009 were in default. They continued making what repayments they could. Their loan with GE Capital was among thousands bought by Pepper Home Loans, which changed the name to Pepper Finance Corporation.
They were served with a civil bill for repossession in 2014 but had no money for legal representation. A repossession order was granted in July with a stay of nine months.
Mr Fitzgerald told the court aspects of the mortgage contract were unfair according to the consumer contracts directive as some of the terms created a “significant imbalance in the parties’ rights...to the detriment of the consumer”. In addition, their rights under Articles 7 (housing) and 26 (rights of people with disabilities) of the Charter, would be breached if the repossession were to go ahead, he said.
It was “not at all” his submission, he said, that the Grants hadn’t borrowed money or didn’t owe money, but their rights under EU law had not been asserted.
Granting leave, Ms Justice Heneghan said there were grounds for a judicial review.
The case is being observed by the international organisation, the Open Society Justice Initiative, which is supporting such cases in Europe.
Marguerite Angelari, a senior attorney with the OSJI, was in court yesterday. She said the case was similar to those of thousands "who suffer under loan burdens that threaten their ability to satisfy their basic needs and fundamental rights."