News

A court has approved a personal insolvency arrangement (PIA) which will allow a 57-year-old woman make mortgage repayments on her home until she reaches the age of 99.

The decision is one of a number of recent rulings where arrangements extending mortgages far beyond normal life expectancy have been approved in circumstances where there is no other workable way of keeping a debtor in their home.

Under the PIA approved by Circuit Court Judge Mary Enright, Dubliner Belinda Kane will have the term of her mortgage extended to 504 months.

The term extension allows for more manageable mortgage payments.

Should she die before the end of the mortgage term, the remainder of the mortgage will be paid from her estate.

The arrangement had been objected to by her lender Permanent TSB.

The court heard Ms Kane, from Coolock, got into financial difficulty after losing her job and her mortgage fell into arrears as she struggled to make ends meet.

Her partner died two years ago but he was not covered by insurance as the policies had lapsed. Ms Kane had thought they were covered for some kind of mortgage protection, but she had now been left with the full debt to repay.

Her lender had allowed her to make interest-only payments for a period after her partner’s death but was no longer doing so.

Ms Kane’s home was said to have a market value of €342,000, with over €104,000 owed on the mortgage.

Permanent TSB had argued it was not appropriate to approve the PIA as it was not fair and equitable to the lender and they would be unfairly prejudiced. However the PIA was approved last Tuesday.

Ms Mooney argued the arrangement would allow creditors recover debts due to them to the extent permitted by the means of the debtor.

She also argued the arrangement gave a better return for creditors than if Ms Kane was forced into bankruptcy.

The case is one of a number of recent ones where mortgage terms have been extended into old age to make monthly repayments more manageable.

As a result, some creditors, including Start Mortgages and Mars Capital, are said to have indicated the practice could be used as a practical debt solution.

Earlier this year, the Central Bank warned that people aged 60 and over make up a quarter of the 29,000 people in long-term mortgage arrears, leaving them at risk of losing their homes unless lenders come up with more “extensive or ambitious” ways to restructure their loans.

The High Court previously approved a PIA for a 54-year-old woman to make mortgage repayments on her family home until she is aged 90.

The Circuit Court has also approved an arrangement under which a couple’s mortgage was extended until one of them is aged 115 and the other 106.

However, the courts have not approved such arrangements in all cases.

Last April the High Court refused to approve a pensioner’s PIA which would have seen her continue to make mortgage repayments until she was 98 as it was felt it would not be able to comply with the terms of the proposed arrangement.

A YOUNG woman who suffered a serious arm injury after being bitten by a large pit bull terrier in the home of her then-best friend has been awarded €121,917 damages by a High Court judge.

Colene Killian, of Banagher Street, Cloghan, Co Offaly, sued her then-best friend’s parents, Martin and Amy Kilduff, over the “terrifying experience” just after midnight on February 14, 2016 in their home at Clonlyon, Belmont, Co Offaly.

Then aged 21, she claimed she was lawfully on the premises owned and controlled by the defendants as a visitor when she was attacked and bitten by a dog present on the premises.

She alleged the defendants, their servants or agents were negligent and in breach of the Control of Dogs Act over failures to ensure the dog was muzzled and under control.

The case was heard by the High Court sitting in Galway and Mr Justice Tony O’Connor’s judgment, delivered on April 30, was published this week.

The judge said Ms Killian had gone back, by car, with her then-best friend and the latter’s boyfriend Ollie, to the friend’s home. Ms Killian was awaiting collection by her father to bring her home.

While Ollie was in the sitting room continuing a heated argument with a third party on his phone, both women went into a bedroom and were chatting on the bed.

The dog had also been in the sitting room but escaped, entered the bedroom, jumped onto the bed and nipped Ms Killian’s back, the judge said.

She became hysterical and pleaded for the dog to be taken out, Ollie said he would hold the dog and she could make her way out of the house, the judge said.

When Ms Killian had her hand on the bedroom door handle, the dog lunged towards her and latched onto her arm for about a minute. Ollie pulled the dog away, she saw a chunk of flesh in the dog’s mouth, pulled up her sleeve and saw a “really big hole” in her arm.

When later taken to Tullamore hospital, the wound was too deep to be closed. Washing it out, plus administration of antibiotics, was all that could be done at that time.

Ms Killian was transferred to St James’s Hospital on February 17, 2016, where she spent six days and underwent a procedure to close the wound. A plastic surgeon later told her further surgeries would be required.

A “genuine and intelligent” plaintiff, there was “not a shred of exaggeration” about her inability to wear short-sleeved tops without the severe indentation being noticed. Her account of breaking down when going for the fitting of her wedding dress “moved everyone in the court”.

She had given up an agricultural course as a result of the trauma of the dog incident. She now works in a residential centre for teenagers with severe behavioural problems and hopes to start a social care course later this year.

The judge awarded maximum general damages of €65,000 to reflect that the situation from April 2016 to April 2021 was physically and psychologically very demanding on Ms Killian.

The trauma, hospitalisation and lack of success in addressing the physical appearance of her left arm, among other reasons, merited that sum, he said.

While the future should be brighter, for reasons including further reconstructive surgeries, she will still have a lifelong scar and phobic anxiety about some dogs, he said. He awarded an additional €45,000 to reflect that, plus special damages, which made a total award of €121,917.

Irish Independent

A 66-year-old woman has walked free from a court in west Cork with a suspended sentence and a fine for her refusal to wear a face mask in a shop.

Margaret Buttimer was jailed for the weekend following a hearing at Bandon District Court on Friday.

She had refused to wear a mask in the body of the court.

She had appeared before the court for refusing to wear a mask at Dunnes Stores in Clonakilty, Co Cork, on February 12 last.

She was found guilty of the offence of not wearing a mask in the store in breach of Covid-19 regulations.

Judge Colm Roberts was told that Ms Buttimer had abused the store manager in Dunnes when he asked her if there was a medical reason why she wasn’t wearing a face covering.

Ms Buttimer, who has an address at The Cottage, St Fintan’s Road, Bandon, Co Cork, called the store manager an “asshole”.

Gardaí attended the scene but Ms Buttimer again refused all requests to wear a mask, or provide an explanation as to why she would not do so. She claimed she only answered to God when asked by gardaí.

Last Friday at Bandon District Court Judge Roberts asked Ms Buttimer to don a mask whilst she was before the courts.

She refused his request and declined to give a reassurance that she would start wearing masks in shops. She reiterated that she was only answerable to God.

Judge Roberts asked her solicitor, Plunkett Taaffe, to speak to her about the situation she was facing arising out of her non- compliance.

“I see she is not wearing a mask,” Judge Roberts said. “Ask her to reflect on her position. She is seriously limiting her position and the options this court has to deal with this case.

“I do not want to see her going to prison. Masks are an essential requirement in dealing with this virus. Science very strikingly shows this.

“She must moderate her own personal views for the benefit of the public.

“She has said several times she is only answerable to god and so she seems to think she is not answerable to the law or this court or the public health needs of this country.”

Judge Roberts said that Ms Buttimer was defiant and something of an enigma.

“She is unrepentant and is likely to reoffend. The non-wearing of a mask today is a further indication that she will do this.

“That seriously undermines the options of this court and the only option I can consider is a custodial sentence.

“I do not want that but if she remains unrepentant and is openly defiant from a public health point of view I want you to convey to her I will have no other option but to jail her.

“I have to be reassured she will not reoffend. If she goes into a shop and is without a mask she is breaking the law and that’s my deepest concern.

“It will be her choice and that she has limited my options by her choices.”

Mr Taaffe was given an opportunity to consult with his client who again refused to wear a mask. She also declined to give any undertakings or assurances to the court about mask wearing in the future.

Mr Taaffe said his client was a person of “deep religious faith” who believed she was only answerable to God.

The court heard that Ms Buttimer was a person with an unblemished record. Mr Taaffe said that his client was a mother and a grandmother who assisted hugely in the care of a 94-year-old parent.

Mr Taaffe added that the mother of two was “entrenched” in her belief that that the wearing of a mask was a “gross intrusion of her freedom”.

Judge Roberts said that Ms Buttimer was behaving in a “destructive” manner which was at odds with her pleasant demeanour in court.

Ms Buttimer, who was supported in court by her partner, who was wearing a mask, apologised to the manager at the store whom she verbally abused.

Taking her lack of previous convictions and her age in to account, Judge Roberts imposed a three-week prison sentence which he suspended for a period of two years. He also fined Ms Buttimer €350 for verbally abusing the store manager.

He stressed that there was no doubt as to the efficacy and importance of wearing masks to prevent the spread of Covid-19 in the community.

Ms Buttimer left the court to a round of applause from up to 40 supporters who told her she was “brave” for taking a stand on the matter.

Supporters held placards with slogans such as “Granny’s won’t be gagged”.

Ms Buttimer declined to speak to the media but thanked all those who had assembled outside for the hearing.

She will appear in court again in relation to other similar charges on June 14 next.

Judge Roberts told her she was entitled to her relationship with God but not to the detriment of society.

There was a certain element of enjoying the attention she was getting, Judge Roberts added.

Irish Independent 

Seventeen solicitors have become the first in the profession in Ireland to be granted the title of senior counsel.

The development is a significant one in Irish legal history as until recently only barristers could obtain the prestigious title.

Among those granted “patents of precedence” by the Government were criminal defence solicitors Michael Staines and Dara Robinson, civil and criminal practitioner James MacGuill and commercial litigation solicitor Liam Kennedy.

The 17 also include insolvency practitioner Bill Holohan, personal injury solicitor Damien Tansey and medical negligence solicitor Roger Murray.

The term senior counsel can only be used by practitioners who obtain a patent from the Government.

These recognise competence, probity and independence, and either advocacy skills, expertise in specialist litigation or specialist knowledge of an area of the law.

The system of awarding patents dates back to the 1700s. Barristers who become senior counsel get called to the inner bar and can earn higher fees.

Solicitors who become senior counsel will remain solicitors. It remains to be seen whether the change will result in more advocacy by solicitors in court and what impact it will have on their earning potential.

The change to allow solicitors to apply to become senior counsel was introduced in the Legal Services Regulation Act in 2015, but it was this year before solicitors could apply.

Under the Act, a committee chaired by the Chief Justice makes recommendations to the Government on who to grant patents to. It is understood around 70 solicitors applied.

Irish Independent

Residents of Temple Bar in Dublin have blocked the development of a new boutique hotel in the city’s tourist district which they feared would lead to the creation of another superpub in the area.

An Bord Pleanála has upheld an appeal by the Temple Bar Residents group against the decision of Dublin City Council to grant planning permission for a 12-bedroom hotel at the corner of Merchant’s Arch and Temple Bar Square.

The project was promoted by businesswoman, Sandra Doone, whose husband, Thomas, owns the adjoining Merchant’s Arch pub.

The development would have required the demolition of an existing two storey building, which houses the Irish Pub Shop and several other small commercial units, and the construction of a five-storey building with a retail unit on the ground floor and basement with the hotel on the four upper floors.

However, An Bord Pleanála ruled that the proposed development on grounds of its height relative to surrounding buildings would constitute overdevelopment of the site.

‘Out of character’
The board concluded it would be “out of character with the pattern of development in the vicinity” and would not integrate well into Temple Bar Square because of its height.

“The subject plot is insufficiently wide to accommodate a building greater than three storeys,” the board said.

It said the site was not a traditional corner plot where a higher building could create a landmark feature, while the proposed design would have created a vista from the Central Bank down Crown Alley which would be “visually discordant”.

In addition, the board said the plans for a single large retail unit at ground floor level to replace a number of smaller shops on Merchant’s Arch would have a detrimental impact on the vibrancy of the area due to the loss of small-scale commercial units which give Temple Bar its character.

Ms Doone had claimed the existing, under-utilised building was in poor condition and in need of significant refurbishment, while the proposed hotel would “contribute positively to Temple Bar Square and surrounding environment of the city”.

She said a use for the building had to be found after An Bord Pleanála had refused planning permission in 2018 for plans which would have made its first floor an extension of the Merchant’s Arch pub.

Ms Doone claimed she should be commended rather than vilified for opting for a retail use.

However, Temple Bar Residents said the proposed development was a substitute for the previous attempt to extend the Merchant’s Arch pub which it claimed would have created a “superpub”.

The group said the contention by Ms Noone that the existing building had no architectural merit, given its links to the other application, was “incredible” and “glib”.

The group’s chairperson, Frank McDonald, claimed the project was “a Trojan horse for the establishment in time of a fully licensed restaurant” which was only one step away from converting the entire area into a pub.

He also criticised Dublin City Council for failing to recognise Merchant’s Arch’s rich urban history and the “souk of sorts” in the laneway.

‘Like a sore thumb’
Mr McDonald said the proposed new building would “stick out like a sore thumb” in Temple Bar Square.

Residents from the nearby Crampton Buildings claimed the proposed taller structure would block the sunlight to their windows and balconies as well as causing serious disruption during the construction phase.

An Taisce also opposed the proposed development claiming the demolition of the building could not be justified, while the area was already saturated with guest accommodation.

The heritage group said allowing the hotel would create a strong impetus to look for a licensed use of the building again in the future when there was already an overconcentration of pubs in Temple Bar.

An inspector with An Bord Pleanála said the streetscape of the lane would be “significantly negatively changed” by the proposed development which was “strikingly at odds” with other buildings in the vicinity.

irishtimes.com

Nigerian had fraudulently applied in March 2015 for a second residence card

A Nigerian man has lost his High Court challenge to a decision revoking his residency here on foot of a finding his marriage to a Dutch national was a marriage of convenience.

The man fraudulently applied in March 2015 for a second residence card based on the marriage when the Dutch woman, whom he married in 2009, had left the State no later than early 2014, though there was evidence suggesting she left earlier than that, Mr Justice Max Barrett said.

The woman was a named sponsor for several EU residence card applications in the United Kingdom for another Nigerian national on dates in 2010 and 2016, he observed.

The judge, for reasons including the man had repeatedly behaved falsely towards the Minister for Justice over a protracted period and never expressed remorse for that when caught out, rejected his judicial review challenge to the Minister’s July 2018 revocation of his residence.

In his recently published judgment, the judge said the man married the woman in May 2009 after coming here without permission in late 2008. The man appeared not to know her surname when it came to his court documents, getting it wrong until the Minister’s side got it right after which he used her correct surname, the judge observed.

In November 2009, he got his first residence card on the basis his wife was exercising her free movement rights here. In March 2015, he got a second residence card after claiming she was still exercising her free movement rights here when she had left no later than early 2014.

That application was fraudulent and in subversion of the law of Ireland and the EU, the judge said. Because the woman had left Ireland, the man had no derivative rights by reason of her exercise of free movement rights here.

In June 2018, the Minister notified the man he considered his marriage was one of convenience and said the woman had been the named sponsor for residence applications in the UK for another Nigerian national at the same time as being the basis for the man’s application.

The clear inference was that the woman was in some form of relationship with the second Nigerian national, the judge said.

The UK applications were also based on her residence in the UK between 2010 and 2016 when this applicant claimed he was living with her here until early 2014. Having regard to all these matters, the Minister in late July 2018 revoked the applicant’s second residence card.

The judge rejected arguments the man was entitled to succeed on the basis the Minister had applied an incorrect burden of proof or had inadequate evidence for his decision.

The man had not secured leave for judicial review on the basis of advancing incorrect burden of proof arguments as that issue was never raised before the judge who granted leave, he said.

He also found there was “ample” evidence before the Minister to show the man’s credibility and the reliability of the documents provided by him was “suspect”.

The man had failed to explain how and why he came to play “fast and loose” over a protracted period with the immigration/EU Treaty rights processes, he said. All of these matters, and the man’s failure to dispel concerns raised by the Minister with him, offered a “more than sufficient” basis for the Minister’s decision, he ruled.

irishtimes.com

More than €32m in personal debt has been written off this week under insolvency arrangements approved by the High Court.

The huge sum relates to six cases dealt with between Monday and Wednesday.

The largest write-off – €15.2m – came with the approval of a personal insolvency arrangement for former Pierse Construction director Michael O’Reilly.

The company was one of the country’s largest building firms before going into examinership and then liquidation after the property market crashed a decade ago.

This week’s cases highlight the increasing use of legislation introduced in 2013 aimed at allowing insolvent debtors keep their family homes and get protection from creditors.

Already this year there was a record €60m debt write-off approved for Enda Patrick Whelan, an Ennis-based former quarry operator.

The arrangement for Mr O’Reilly, of Newtown, Celbridge, Co Kildare, continues the trend of multi-million euro write-offs.

It was devised by personal insolvency practitioner Alan McGee and approved on Monday by Mr Justice Mark Sanfey.   

The court heard Mr O’Reilly invested heavily in Pierse Construction and other property ventures. But all of the investments were lost in the recession and he ended up with debts of €15.8m.

Mr O’Reilly’s largest creditors were Everyday Finance DAC, which was owed more than €8.9m, and Danske Bank, which was owed €4.8m.

Unlike other recent arrangements, Mr O’Reilly will no longer own his family home.

He found a third party to purchase it at market value and then rent it back to him and his wife Fionnuala. It was one of three properties now worth a combined €690,000, on which €2m in mortgage debt was outstanding. All have been voluntarily sold.

A feature of some of the cases this week was the poor return vulture funds recouped on bad debts.

In one case dealt with yesterday, Ennis Property Management, a vulture fund affiliate of global investment bank Goldman Sachs, will get just €182 from two sisters-in-law who had total debts of €8m.

The case involved the approval of arrangements for Una and Margaret Kinsella, both from Ballybritt, Roscrea, Co Tipperary.

Una Kinsella had debts of approximately €3.8m, while Margaret Kinsella owed around €4.2m. The vast majority of these debts have now been written off.

They will also keep their family homes under restructured mortgages.

Each will have to make a lump sum payment of just €100 towards their debts.

The debts arose from personal guarantees for loans used to fund a business run by their husbands.

The arrangements were also put together by Mr McGee.

His barrister Keith Farry told the court the arrangements were more advantageous to creditors than if the debtors were made bankrupt.

Irish Independent

A woman lost her family home and was adjudicated a bankrupt after Bank of Ireland (BoI) charged her more than twice what she should have been paying on her mortgage, the High Court heard.

Deirdre Dennis said she was left financially crippled and personally devastated by the level of overcharging on her monthly repayments, between June 2012 and December 2017, to BoI.

She is now asking the court to annul the bankruptcy petition she made in October 2017 in an effort to deal with what she believed were her debts.

Her counsel Eoin McGonigal SC said while BoI admitted a “catastrophic error” in her case, it came after she had exited bankruptcy in October 2018, and after her former family home at Seaview Terrace, Killala, Co Mayo, had been sold by the bank.

In February 2019, counsel said, BoI wrote to Ms Dennis after it had completed a review of her mortgage under their Tracker Mortgage Examination. In its correspondence BoI accepted, acknowledged and unreservedly apologised for failing to provide her with a tracker mortgage at a time when she was entitled to one.

BoI said she was entitled to compensation, redress and a refund of interest charged and accepted the bank’s failure was a factor in her losing her home.

It also withdrew its claim in her bankruptcy of amounts totalling €115,000.

Ms Dennis has applied to the High Court to have her bankruptcy annulled.

Counsel said when seeking to be adjudicated a bankrupt she believed she owed BoI some €171,000 on foot of loans taken with the bank. Her then home was valued at €73,000.

She also had additional debts of €66,000 owed to Revenue and another financial institution.

She claims that had she all the relevant information from BoI in October 2017 she would not have sought to be adjudicated a bankrupt.

The court was told the bankruptcy trustee was not opposing the annulment application.

BoI did not wish to make any submissions to the court, Ms Justice Teresa Pilkington was told.

In a sworn statement, Ms Dennis said she spent years “fighting to keep my head above water”.

Despite her struggles, including her business failing in 2008, she always tried to maintain her mortgage payments as best she could.

She said she pleaded with BoI to apply a common sense approach to the level of her repayments and made many personal sacrifices.

In 2014 she said she had to stop making repayments and left the property which was in negative equity. In 2015 BoI sought an order for repossession of her family home so it could sell the property, which she consented to.

In early 2019 BoI admitted it had overcharged her.

She now rents a property at Killala Road, Ballina, Co Mayo, which she says she ended up paying twice as much for than she been paying the mortgage for the previous home she was “forced” to leave.

She could not understand why her account was not examined sooner, or why BoI continued to pursue possession proceedings against her in 2015 when it should have known her loan account would come under examination.

Ms Justice Pilkington, after hearing legal submissions and noting it was “a very unusual case”, reserved her decision.

Irish Independent

A man has been ordered to pay his former lover €15,000 plus costs arising out of a dispute over the repayment of a credit union loan.

Galway Circuit Civil Court heard Hanna Kelly, of Ardrahan, Co Galway, took out a loan to finish and furnish her ex-partner’s home, in the belief they were engaged.

Ms Kelly, a mother of five, also told Judge Raymond Groarke her ex-partner Michéal Geraghty, of Knocknamanagh, Craughwell, Co Galway, had promised to add her name to the title deeds of his house.

Mr Geraghty, a father of six, denied both claims and said he never asked or intended to marry Ms Kelly, a former fitness instructor, as he was already married.

The court heard the former couple had an “on again, off again” relationship beginning in 2004 and ending via text message in October 2012.

During this period, they lived together intermittently in houses in Gort, Ardrahan and Craughwell.

When pressed by James Fahy BL, counsel for Mr Geraghty, for details on “where, when or how” they got engaged, Ms Kelly said she couldn’t recall.

In her evidence, she said Mr Geraghty proposed to her several months after they got together and they exchanged Claddagh rings as a sign of their commitment.

However, Mr Geraghty said the rings were exchanged in the context of a Christmas present and he never wore his.

He also said he was still legally married at the time.

Mr Geraghty said that following his legal separation in 2008, he decided it was necessary to build a home at a site he owned beside his former marital home, in order to maintain access to his daughter, who has special needs.

However, Ms Kelly claimed they had intended to build the house together and cited this as the reason she secured a credit union loan of €26,000.

She told the court the loan was in her name only, as Mr Geraghty believed he would not get approval as he was not a member of the credit union and had no loan history.

The loan was taken out in July 2008 and repayments of €94 per week were agreed over a period of eight years.

The money was used to complete the build which had been largely undertaken by Mr Geraghty who is a builder by trade.

However, the court heard the couple’s relationship broke down multiple times over the next few years and they only lived together in the house for short periods of time.

Ms Kelly provided the court with 118 repayment receipts totalling €12,440.

She claimed she personally paid more of the debt, but couldn’t locate the receipts.

She also claimed she carried out tiling, painting and various groundworks, which together with the loan amounted to €17,446.

Following one of their break-ups, Ms Kelly told the court she contacted Mr Geraghty’s solicitor and found out she was not named on the title deeds, and she felt let down.

Mr Geraghty claimed he repaid all but €890 of the loan which, when penalties were added, amounted to €40,984.

He said he would give money to Ms Kelly weekly to repay the loan and that it was always his debt, not hers.

When their relationship ended in 2012, Ms Kelly stopped repaying the loan and Mr Geraghty took over the full payment which was settled in May 2018. Finding in favour of Ms Kelly, Judge Groarke ordered Mr Geraghty to pay €15,000 plus costs of €2,500.

Irish Independent