Seven out of every 10 home repossession cases that come before the courts involve owners who are not legally represented, a study to be published on Monday has found.
The findings indicate that the European Union Charter of Fundamental Rights (EUCFR) is not being fully respected in Ireland, according to the authors of the study.
People facing the loss of their homes in court cases where they have no legal representation are also not having their EU consumer and human rights entitlements fully respected, the authors say.
The principles of access to a fair trial and access to legal aid are being denied to two-thirds of those who are facing loss of home through the actions of ECB directly supervised entities
The study argues that the European Central Bank (ECB) is failing to ensure that European law is being applied in cases involving the financial institutions it supervises.
“The principles of access to a fair trial and access to legal aid are being denied to two-thirds of those who are facing loss of home through the actions of ECB directly supervised entities,” the authors say.
“These actions of the ECB and ECB directly supervised institutions are undermining the effectiveness of EU consumer and human rights protection in a systematic way in Ireland.”
EU law
The study, Access to Justice and the European Central Bank, by the Centre for Housing Law, Rights and Policy at University College, Galway (UCG), says that most of the EU law issues canvassed in the study are not being considered by Irish courts.
The report was written by Dr Padraic Kenna and solicitor Simon Kennedy, both of the UCG School of Law. Their research was supported by funds from the Open Society Foundations and is to be launched later on Monday at UCG.
The authors examined 2,396 home loan debtor cases that came before the Irish courts in December 2017 and January 2018 and found that in 1,679 of these (70 per cent), the homeowner had no legal representation. In 168 cases (7 per cent), the homeowner acted as a lay litigant.
In figures released last week, the Central Bank said approximately 8,195 homeowners have had their homes repossessed since the economic crash. Of these, 2,721 were the result of court orders, with the rest being surrendered voluntarily. Central Bank governor Philip Lane said the relatively low figure was an indication of how difficult it was for banks to secure possession orders.
Home mortgage repossession cases are heard by Circuit Court judges and registrars in the main where the lending institutions invariably have a solicitor and in most cases a barrister acting for them, the study says.
Valiant efforts
Circuit Court judges and registrars make valiant efforts to explain procedures, processes and even the meaning of legal terms to people who are “at best anxious and nervous, and at worst suffering from serious illness, disorientated and emotionally vulnerable and fragile”, according to the study.
The authors of the study say that EU consumer law requires courts of their own motion to review contracts, including mortgage contracts, to see if they contain unfair terms, but that only some Irish courts have accepted this obligation.
Of the 2,396 cases looked at by the authors, 1,530 (64 per cent) involved lenders that were directly supervised by the ECB, but where the debtor had no legal representation.
“The principles of access to a fair trial and access to legal aid are being denied to two-thirds of those who are facing loss of home through the actions of ECB directly supervised entities involved in repossession of homes.”
The study said that Central Bank of Ireland data has shown that debtors behind on their mortgages include a high representation of single parents (women), with three children or more, and often reliant on State support.
