Judge warns against engaging with "unregulated charlatans"

The recent judgment of Mr Justice Max Barrett (given 27 July 2021) in the case of Start Mortgages DAC v Cussen & Anor [2021] IEHC 531 is a notable example of what the court described as an 'unfortunate case' where the defendants stopped making any effort to repay what they owed (a mortgage loan secured on a family home in Wexford) and instead "fell into the clutches of unregulated charlatans or else downloaded documents that one or more of these charlatans has drafted and/or uploaded to the internet for the vulnerable to use".

Background

The background to the case was that Permanent TSB had originally made loans available to the defendants secured on a family home. The lender's interest in the loans were subsequently acquired by Start Mortgages DAC. The defendant borrowers defaulted in making loan repayments (proceedings first issued in 2014) and the court noted there had been one loan repayment payment made in 2015, no payment in 2016, one payment in 2017, and no payments thereafter. 

In the Circuit Court, an order for possession was made against the defendants and this order was appealed to the High Court. At the appeal hearing the first-named defendant (Mr Cussen) did not appear to defend himself. The second-named defendant (Ms Cussen) appeared and represented herself.  

High Court judgment

In his judgment Mr. Justice Barrett noted that the defendants had made a vast number of "wide-ranging arguments" and the judgment tried to capture all the arguments made noting that "much of the documentation before the court is so unusual that at points it has been hard to follow. A striking feature of the arguments made by the defendants throughout the proceedings is the continuing effort never to engage with the substance of what must be engaged with, viz. their continuing default on their loan obligations. That is all that the mortgagee is concerned with, and that is what the defendants have never properly addressed".

In the judgment when referring to the "documents that one or more of these charlatans has drafted and/or uploaded to the internet for the vulnerable to use" Barrett J. noted that portions of these documents and the "oddities" that these documents include amounted in certain sections to a "form of legal nonsense". 

Aside from the bizarre arguments made by the defendant borrowers, a striking point of note from the judgment is that when the defendants defaulted on their secured loan they owed arrears of about €15,000 whereas at the time the case was heard the arrears were in excess of €60,000. Barrett J. observed in his judgment that  if the "defendants had engaged properly with the mortgagee and engaged the services of a solicitor or paid an early visit to the Money Advice and Budgeting Service (MABS) some arrangement would have been arrived at to address the ongoing repayment of an outstanding loan of such a scale". 

Still-mounting arrears

In summary Mr Justice Barrett made the order for possession sought and did not grant any stay on the order as before the order could be executed Start Mortgages would have to bring a fresh motion in the Circuit Court for execution. The court noted that "depending on how matters proceed, there could be another 18–24 months before the order for possession falls to be enforced" and that if "Mr and Ms Cussen will just do the sensible thing and engage properly with Start (and with MABS) even at this late stage – and, at least to the court, this would seem the most prudent course of action for them to take – there is time galore…to see if there is some means of arriving at a repayment solution between themselves and Start that will not involve them losing their family home. They cannot, as they have done since 2017, pay absolutely nothing to reduce still-mounting arrears, avoid any meaningful engagement with Start, and expect that the courts will laud their stance or that things will somehow work themselves out. Start, to its credit, repeatedly made clear at the hearing of this application that it is open to sensible engagement by the Cussens". 

Comment

Clearly heed should be taken of this judgment by all borrowers who are in default and have not sought to engage meaningfully with their lender but instead seek to rely on charlatans who "purport to ‘assist’ vulnerable people in debt, selling them a crock of nonsense that there is some ‘trick of the legal loop’ through which one can readily and simply avoid the repayment of lawfully incurred debts. Such people are fraudsters who, like all fraudsters, prey on the vulnerable".

Start Mortgages DAC v Cussen & Anor [2021] IEHC 531