A SOLICITOR was aware there were 13 legal cases outstanding against a family building company when she drew up legal documents providing for the transfer “for love and affection” of a couple’s Co Dublin home to their son to raise funds for the company which later collapsed, the High Court heard yesterday.
Rosaleen and Patrick Rogers are facing the possible loss of their home at Bancroft Crescent in Tallaght against which a loan of €225,000 from the EBS to their son Paul was secured.
Judgments for some €440,000 against Patrick Rogers and Paul Rogers have also been obtained by ACC Bank over debts of the family company, Barnroe Ltd.
Solicitor Fiona Murray said yesterday she knew the Rogers family from 1987 and was approached by Paul Rogers in April 2002, who told her his parents had agreed to transfer the family home to him to raise funds for Barnroe. She said she told Mr Rogers his parents should get independent legal advice, but he insisted the matter was urgent.
Ms Murray said she advised the couple in May 2002 against the transfer and, as she was Paul’s solicitor and acting for him in litigation against Barnroe, also advised them to seek independent legal advice.
She said they insisted that the transaction went ahead. The difficulty was that the family business was in trouble and they were going to act “whatever I said”. She did not know whether cash raised on the house would save Barnroe.
She said it was her idea to prepare a document which was “most likely not enforceable” providing for the house to be returned to the couple after a year. She had hoped this document would be evidence of the intentions of the parties.
She agreed it would have been “prudent” to talk to the parents before seeking the title deeds of the house but said she believed they understood what was involved. Ms Murray also said she was aware Paul Rogers had applied to the EBS for a home loan for a private dwelling when in fact he intended to use the Tallaght house to raise finance for Barnroe. She agreed she had not contacted the EBS to inform them of this, and accepted she should have.
After hearing evidence yesterday from Ms Murray, Mr Justice Michael Hanna adjourned the case to Tuesday and said that all sides should consider their positions “very carefully”.
Ms Murray also told the court her office had been firebombed earlier in November 2003.
Ms Murray was testifying in the action by Rosaleen Rogers against her son Paul; Ms Murray, practising as Fiona Murray solicitors, Donore Avenue, South Circular Road, Dublin; and the EBS. Ms Rogers wants either to have the house transferred back to her and her husband or, alternatively, damages.
The couple transferred the family home to Paul in 2002 when it was valued at €350,000, with just €2,300 left on the mortgage, allegedly on the basis that it would be returned to them a year later, but that never happened.
Paul Rogers, whom the court heard is unwell, has entered no defence in the case and yesterday Mr Justice Hanna granted an application by John Gleeson SC, for the EBS, to dismiss the case against it on grounds no claims had been made out against it.
The EBS had pleaded that it, acting in good faith, lent Paul Rogers €190,000 secured on the house, and later another €35,000, after being told he had purchased it for €220,000. Had it been aware of the alleged nature of the transfer as being for one year and that Ms Rogers and her husband had continued to live in the house, it would never have sanctioned the loan, the EBS said.
Earlier yesterday, solicitor and conveyancing expert Brian Gallagher said Ms Murray failed to follow proper conveyancing practice in a number of fundamental respects in her handling of this matter. He agreed with the judge that if a solicitor was aware a transaction was intended to “hoodwink” a building society, the solicitor should “get out of it at high speed”.
Mr Gallagher said Ms Murray should have refused to act when the couple said they would not get independent legal advice, because this transaction was “too serious” for them to allow it proceed.
