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Guide & pleading templates

A Guide for People in Mortgage Distress in Ireland

Your EU Consumer and Human Rights: A Guide for People in Mortgage Distress in Ir‌eland (2020 edition) is designed to help people in mortgage distress understand and advocate for their EU consumer and human rights. It is not a comprehensive guide to all of your rights as a borrower under EU or Irish law but rather focuses specifically on two legal requirements under EU law that have the potential to aid many borrowers facing the possibility of possession:

The requirement that courts assess mortgage contracts to determine whether there are any unfair terms and make needed adjustments, and
The requirement that courts determine whether possession is a proportional response to under/non-payment taking into account the impact of possession on the borrower’s human rights.

This Guide was created as part of the Open Society Foundations’ Abusive Lending Practices Project, which, in conjunction with the NUI Galway Centre for Housing Law, Rights, and Policy and a group of Irish lawyers and lay advocates, seeks to ensure that the human and consumer rights of borrowers are protected by courts in possession cases. It follows from a series of Seminars in 2017 setting out the EU consumer and human rights law applicable to mortgage possession cases. The presentation and papers from these seminars organized with Irish Centre for European law are available here: http://www.icel.ie/UCTD.

We developed this Guide because we think that it is critical that you, as a borrower and a consumer, have the information that you need to understand and advocate for your rights. We note, however, that these arguments—and in fact, this entire approach—are relatively new to Irish courts in possession cases. Therefore, these arguments may not initially be acknowledged by registrars, judges, and lawyers and it may require additional time and effort to persuade them to apply this body of law.

This Guide is for informational purposes only. It does not provide legal advice, and is NOT a substitute for consulting a lawyer. We encourage you to read this Guide and take it to your solicitor. Please bear in mind that the law is continually evolving and the arguments and citations in support of these arguments may have changed since these documents were updated in February 2020. Part 1 of the Guide discusses your legal rights and Part 2 provides information on how you can advocate for your rights in your possession case. The Annexes contain more detailed information.

The entire Guide is available for download here: Your EU Consumer and Human Rights: A Guide for People in Mortgage Distress

Pleading templates (Annex G to the Guide)

The guide is accompanied by pleading templates (produced by Irish lawyers) available for download in the below chart.

When using the templates, please note:

The legal system is very complex and there are a very large number of variations possible in each document. It is NEVER advisable to enter a legal dispute without being represented by experienced lawyers.
These pleadings are for legal information only and do not constitute legal advice in a particular case.
The law is continually evolving and the arguments and citations in support of these arguments may have changed since these documents were updated in February 2020.

Proceedings	Documents	Details
Circuit Court	TP 1-Grounding affidavit	Main document setting out case when there is no possession order in place.
High Court judicial review	TP 2-Statement of grounds	Main document setting out case when there is a possession order in place. Lists the orders that are sought (quashing the repossession order andremitting it to the lower court) and the grounds that those orders are based on. Leave has been granted on these grounds in Grant v Laois County Registrar.
	TP 3-Grounding affidavit	Affidavit setting out facts on which the judicial review is based. It needs to set out terms that may be unfair and factors that might be considered in any proportionality assessment.
	TP 4-Ex parte docket	Motion paper to allow the High Court to grant leave to take a judicial review.
High Court appeal	TP 5-Notice of appeal	Appeal a repossession order of the Circuit Court to the High Court on two grounds – lack of own motion assessment for fairness of terms and lack of proportionality assessment.
High Court extension of time to appeal from Circuit Court	TP 6-Notice of motion	There is a 10-day time limit to lodge an appeal but this can be extended. This isthe main document setting out the reliefs sought.
	TP 7-Grounding affidavit	This affidavit avers to all the necessary facts to be granted leave to appeal. It must exhibit a draft Notice of Appeal.
Circuit Court appeal	TP 8-Notice of appeal	Appeal a repossession order of the Circuit Court to the High Court on two grounds – lack of own motion assessment for fairness of terms and lack of proportionality assessment.
Circuit Court extension of time to appeal from County Registrar	TP 9-Notice of motion	There is a 10-day time limit to lodge an appeal but this can be extended. This is the main document setting out the reliefs sought.
	TP 10-Grounding affidavit	This affidavit avers to all the necessary facts to be granted leave to appeal. It must exhibit a draft Notice of Appeal.
Circuit Court	TP 11-Notice for particulars	It is common for lenders to fail to set out clear the contractual or legislative basis for taking possession of a home. This notice demands that the claim be properly particularised. It is sent to the lender’s solicitors and if particulars are not provided then it is necessary to issue a motion grounding on an affidavit. The court can strike out the repossession claim if no particulars are provided.
All courts	TP 12-Data access request in relation to value of mortgage	This request seeks a number of pieces of information from the lender that it will not want to disclose but may be obliged to do so under data protection laws. If the loan was sold to the current lender then this value might be relevant to a proportionality test. This request will certainly be refused and this refusal must be appealed to the Data Protection Commissioner.