Joined up thinking for the Irish Left
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NAMA Wine Lake >>
Debt , evictions , freemen and the law
From Justice Minister Alan Shatter's statement on mortgage default and repossessions ,Dec 2012
"All mortgages contain remedies that may be exercised by lending institutions in cases of mortgage default. Repossession in the event of such default is, therefore, an existing contractual right.
In a well-known 2011 case (Start Mortgages), the High Court found that enactment of reforming legislation in 2009 may have had the unintended consequence in certain cases of restricting lending institutions from asserting their repossession rights.
Alan Shatter, denied Tuesday that this week’s passing of the Land and Conveyancing Law Reform Bill, through the Oireachtas would “open the floodgates “ to repossession of mortaged properties whose owners have fallen into repayment default . To the minister’s quite irrelevant assertion that repossessions would not be the “first option available to banks” , Independent TD Shane Ross warned that banks could now “repossess at will and as they wish”. The very purpose of this week’s bill was to close a loophole in the Land and Conveyancing Law Reform Act that prevented lenders evicting homeowners for loans contracted before 2009 .There is every indication that the government will begin a coordinated pursuit of mortgage debtors relentlessly over the coming months in order to satisfy bankers' and lenders' demands .
With almost 100,000 residential mortgages in arrears of three months or more , Lorcan O’Connor who heads the government’s new Insolvency Service, this week set the new gloves-off tone by attempting to scapegoat what he referred to as “strategic defaulters” – those who supposedly have sufficient funds to pay their mortgages but are deliberately holding back in the hope of getting a better insolvency deal in the future. O’Connor warned that such behaviour was illegal and that deliberate defaulters would face fines of up to €10,000 and jail sentences of up to five years on prosecution .
Sections of the Irish media are clearly abetting the government's attempt to criminalize homeowners who are unable to pay mortgages . Without offering any substantiation , Charlie Weston ,the Irish Independent’s personal finance editor, wrote this Monday, for example : “Some estimates has[sic] put the numbers who are not paying their mortgages, even though they have the funds, as high as one of third[sic] of the numbers in arrears on residential and buy-to-let arrears.”
Ever since the 2008 financial crash ,social workers have been warning about the desperation of distressed mortgage holders . Ignatius Beglane told the Oireachtas Committee on Finance and Public Service as far back as 2009 that psychiatrists were already reporting how borrowers faced with home repossessions were showing suicidal tendencies. Faced with losing homes and businesses other desperate mortgage holders are turning to the quack lawyers of groups such as the Freemen on The Land who try to persuade that there is a remedy under common law whereby individuals can declare themselves “independent of government jurisdiction “.
One person who acted on Freeman advice recently is Francis Cullen, a Tipperary business man adjudicated bankrupt against his wishes in 2011 after his plant hire and sales firm in Clonard fell into financial difficulties . He later lost the business property and his home. Earlier this week Mr Cullen who had already spent three months in prison for contempt was returned to Mountjoy for six months after telling High Court judge Ms Justice Elizabeth Dunne that he didn’t recognise her authority. The court proceedings in Dublin were interrupted several times by Mr Cullen’s supporters from the Freemen on the Land movement .
Today’s Irish Times reports that the Law Society of Ireland and barristers working in the area of debt have advised borrowers in trouble to stay away from groups that claim to have “a secret formula” for circumventing Irish law based on “false imaginings of what the law might be”. According to barrister Keith Rooney, there have been more than 100 cases in the past 12 months in Irish courts in which individuals have used versions of freemen arguments. “These guys are liable to get a lot of vulnerable people into trouble.”
Groups involved with protecting family homes under repossesion threat , include The Anti-Eviction Task Force ,The People’s Association Watchdog, Irish Homeowners Unite, DOHL and New Beginnings . see here for links : http://www.antievictiontaskforce.com/ .
Such groups emphasise solidarity and act on the sensible premise that evictions are in fact perfectly legal under the present judicial system and that there are no hidden, esoteric legal formulae capable of preventing wholescale evictions of defaulting mortgage holders .
In order to successfully resist evictions it is necessary to understand the prime lesson learned from previous anti-eviction movements in Ireland , which is that landlords faced with tenants who are unable to pay their mortgages will resort to evictions and will receive the full backing of the legal system in asserting their right to ownership of property .
Land League founder Michael Davitt wrote about how in the 19 century “eviction was the law of the land”. Today the parasitic landlord class has been replaced by the equally parasitic banking class, whose members act according to actual rather than “moral law” . They consider properties occupied by defaulting mortgage holders to belong to lenders by right of law . From a legal standpoint they are correct. Under such circumstances successful resistance to evictions must inevitably mean defiance of the law.