, WHAT THE BANKS CAN AND CAN’T DO.
MORTGAGES
MORTGAGE LENDERS and BANKS(referred to in this document as “lenders”) must treat borrowers (you and us) in
or facing mortgage arrears, with due regard to the fact that each case of mortgage arrears is unique and needs to be considered on its own merits. MORTGAGE LENDERS MUST use the Framework set out herein when dealing with borrowers in
mortgage arrears or in pre-arrears.
All such cases MUST be handled sympathetically and positively by the lender, with the objective at all times of ASSISTING the borrower to meet his/her mortgage obligations.
You will do well to remember that, “the objective at all times of assisting the borrower to meet his/her
mortgage obligations”, does require the Lender/Bank to help you in your research of your alleged
Contract, and more importantly the Bank/lender should provide you with “adequate assurance of its
performance upon the alleged contract” if you have requested it in the normal way in line with CISG rules.
You are WITHIN YOUR RIGHTS to withhold your performance upon the alleged Contract/Loan, until such
time as the Bank/Lender can provide you with their “adequate assurance of their performance upon the
contract”.
Now it is possibly very hard to give “ADEQUATE ASSURANCE OF PERFORMANCE” upon a contract/Loan
where you have no idea of the exact whereabouts of ALL the elements of the said Contract/Loan.
Especially if you have SOLD your interest in the said loan, or the cash-flow of the said Loan.
The Law behind the “Code of Conduct on Mortgage Arrears” is found in, Section 117 of the Central Bank
Act 1989. You are forgiven for wondering how this mess evolved when the laws were there to
protect us since 1989, and earlier in 1942!
The Central Bank has the power to administer sanctions for a contravention of the “Code of Conduct on
Mortgage Arrears”, under, Part IIIC of the Central Bank Act 1942. BUT….. Don’t hold your breath, as it is
akin to asking the mother of a one (1) year old toddler to “Slap” her “beautiful” child for say, trying to
“RUN” even though the toddler hasn’t mastered the art of walking yet!
Lenders/Banks will do well to remember, THAT THEY ARE REQUIRED to comply with the “Code of Conduct
on Mortgage Arrears” as a MATTER OF LAW.
Where a provision of the “Code of Conduct on Mortgage Arrears” is amended or deleted, any legal
proceedings, investigation, disciplinary or enforcement action in respect of a right acquired, or obligation
or liability incurred, in respect of a contravention of, or act of misconduct under, the provision in force at
the time may be instituted, continued or enforced, and any sanction or penalty in respect of such
contravention or act of misconduct may be imposed by the Central Bank of Ireland as if the provision had
not been amended or deleted.
, WHAT THE BANKS CAN AND CAN’T DO.
MORTGAGES
The above is their own words, what they are actually saying is. If the “Code of Conduct on Mortgage Arrears” causes the Banks too much problems, and the Government and/or The Central Bank decide to delete or remove from the “Code” the bits that are causing the Banks trouble when they try to repossess your home, You have the right to see out any case you may have brought while the bit they are removing was in force. But not after.
Talk about making it up as they go along!
The “Code of Conduct on Mortgage Arrears” applies to the mortgage lending activities of all regulated entities,
except CREDIT UNIONS, operating in the State, including:
- a financial services provider authorised, registered or licensed by the Central Bank of
Ireland; and
- a financial services provider authorised, registered or licensed in another EU or EEA Member State and which has provided, or is providing, mortgage lending activities in the State. The “Code of Conduct on Mortgage Arrears” applies to the MORTGAGE LOAN of a borrower which is secured by their PRIMARY RESIDENCE.
When dealing with borrowers in arrears or in pre-arrears, MORTGAGE LENDERS are not required to comply with the following provisions of THE CONSUMER PROTECTION CODE: Chapter 2, Common Rules: Provisions 46, 47 and 48 (Complaints Handling); and Chapter 4, Loans: Provision 4 and Provision 11.
Lenders/Banks MUST ensure that they comply with all provisions of the “Code of Conduct on Mortgage Arrears”
from 1 January 2011. We draw lenders’ attention, and more importantly The Borrowers attention SPECIFICALLY to provisions 21, 35, 47 and to steps 3 and 4 of the Mortgage Arrears Resolution Process. Provisions 21,35, and 47, are printed below in this document and are marked by the number appearing in RED at the beginning of the paragraph. Also Steps 3 and 4 are also printed below and are marked as follows:- Step 3 = numbers 30, 31 and 32 appearing in ORANGE at the beginning of each paragraph. Step 4 = numbers 33,34,35,36,37,38,39,40, and 41 appearing in ORANGE at the beginning of each paragraph. We hope all this makes sense!
Some Definitions!
Not co-operating: A borrower can be considered as not co-operating with the lender when any of the following apply to their particular case:a) the borrower fails to make a full and honest disclosure of information to the lender, that would have a significant
impact on their financial situation;
b) the borrower fails to provide information sought by the lender relevant to the borrower’s, financial situation;
or
c) a three month period elapses during which the borrower:
(i) has failed to meet his/her mortgage repayments in full as per the mortgage contract or has failed to meet in full
repayments as specified in the terms of an alternative repayment arrangement; and
(ii) has not made contact with, or responded to, any communications from the lender or a third party acting on the lender’s behalf.
, WHAT THE BANKS CAN AND CAN’T DO.
MORTGAGES
Pre-arrears: A pre-arrears case arises where the borrower contacts the lender to inform them that he/she is in danger of going into financial difficulties and/or is concerned about going into MORTGAGE ARREARS.
Primary Residence: means a property which is:
(i) the residential property which the borrower occupies as his/her primary residence in this State, or (ii) a residential property in this State which is the only residential property owned by the borrower.
Record: means any document, file or information (whether stored electronically or otherwise) and which is capable of being reproduced in a legible form. Just remember the BEST EVIDENCE Rule, Where a copy of a contract of
any binding agreement is NOT sufficient to ENFORCE such Contract or Agreement. Just in case anyone is trying
to pull a fast one!
Repossession: means any situation where a lender takes possession of a property either by way of voluntary agreement with the borrower, through abandonment of the property by the borrower without notifying the lender,
or by Court Order. Further Remember, Absolutely at NO stage should a borrower surrender their home, even in the event of a Court Order you should challenge the validity of such Court Order by appeal or whatever means available at that time.
Unsolicited Communication: includes any communication that has not been requested by, or agreed in advance with, the borrower. Such communications include those instances where contact is not made with the
borrower. Further Remember, Do NOT live your life in fear of answering your phone. Always answer your
phone and deal with whoever is on the other end as we teach you and you will TAKE BACK YOUR CONTROL.
13. A lender must have a dedicated section on its website for borrowers in, or concerned about, financial difficulties which must include:
a) the information booklet required under provision 12; b) information on the level of charges that may be
imposed on borrowers that do not co-operate with the
lender; and
c) a link to any website operated by the MABS that
contains information about mortgage arrears.
Basically the Lender/Bank must pretend it is interested in helping you keep your property. Even though your actual use to the Bank as a cash cow is no longer the case, the Banks must pretend they didn’t mislead you and you did all this to your own self!
14. At the borrower’s request, the lender MUST confirm the time period remaining during which the lender may not commence legal action for repossession of the borrower’s PRIMARY RESIDENCE. How long is a piece of string! Or “give them enough rope and they’ll hang themselves” Once you are in “Default” generally 3 months missed payments, you usually receive a letter “calling in” your Loan. Well it’s tick tock from that date. Some borrowers are 2 years and indeed a small number are 3 years down that road, and no legal cases taken yet. But…. That is not the case everywhere. THE MOST IMPORTANT THING TO REMEMBER IS ONCE THIS
, WHAT THE BANKS CAN AND CAN’T DO.
MORTGAGES
PROCESS STARTS, (YOUR ARREARS) YOU SHOULD BE BUILDING YOUR CASE AGAINST YOUR LENDER. You do have a sound case if you put the effort in.
19. A lender MUST inform the borrower, in writing, when it has appointed a third party to engage with the
borrower in relation to his/her case, and must explain the role of the third party.
We have plenty of evidence that this has not happened, therefore the Lender has breached this code, and the Law.
20. A lender must ensure that the level of contact and communications from the lender, or any third party acting on its behalf, is proportionate and not excessive.
This means they can’t be ringing you every second day, and in some cases 4 and 5 times a day. The Lender breaks the Law if the carry on like this. (see next paragraph marked with 21. In RED)
21. Each calendar month, a lender, and/or any third party acting on its behalf, MAY NOT INITIATE more than three (3) unsolicited communications, by whatever means, to a borrower in respect of his/her mortgage arrears or
pre-arrears situation. The unsolicited communications do not include any communications to the borrower
regarding his/her arrears or pre-arrears situation, which are required by the “Code of Conduct on Mortgage
Arrears” or other regulatory requirements.
SEE OUR DOCUMENT ON “
DEFLECTING DEBT COLLECTORS
” FOR VERY
CLEAR INSTRUCTIONS ON DEALING WITH PHONE CALLS/CONTACT.
So what we are telling you is. The Law clearly states your Lender Can NOT contact you any more than 3 times in a whole month, without your permission. Please do yourself a favour and download our other document mentioned above “DEFLECTING DEBT COLLECTORS” it explains exactly how to deal with the vultures!
22. When arrears arise on a borrower’s mortgage loan account and remain outstanding 31 days from the date the
arrears arose, a lender must:
a) inform each borrower and any guarantor on the mortgage, unless the mortgage loan contract explicitly prohibits
such information to be given to the guarantor, of the status of the account in writing, within 3 working days. The letter must include the following information:
i) the date the mortgage fell into arrears;
ii) the number and total amount of full or partial payments missed; iii) the monetary amount of the arrears to date;
iv) confirmation that the lender is treating the borrower’s situation as a MARP case;
v) the importance of the borrower co-operating with the lender during the MARP process and notification
that, if co-operation ceases, the protections of the MARP no longer apply and that the lender may start
legal proceedings for repossession;
vi) a statement that fees, charges and surcharge interest in relation to the arrears will apply, where the borrower does not co-operate with the lender;
vii) details of any fees and charges in relation to the arrears that may be applied if the borrower does not
, WHAT THE BANKS CAN AND CAN’T DO.
MORTGAGES
viii) a general statement about the impact of missed mortgage repayments and repossession on the borrower’s credit rating, and
b) provide the borrower with the information booklet required under provision 12.
This allows the Lender to technically send a threatening letter to you which is the equivalent of a gangster sending the heavies around to your place to give you the few slaps required to entice you back into the paying game. Plus always remember they are actively building their case NOW.
24. Where arrears exist on a mortgage loan account, an updated version of the information specified in provision 22(a) above, must be provided to the borrower in writing, every three months.
This is where they can send you out information regarding the alleged mortgage and this contact does not count as 1 of the 3 unsolicited contacts per month. Anyway this is only 1 contact in writing every 3 months or 4 times per year.
25. When a third full, or partial mortgage payment as per the original mortgage contract is missed and remains outstanding and an alternative repayment arrangement has not been put in place, the lender must notify the
borrower, in writing, of the following:
a) the potential for legal proceedings for repossession of the property, together with an estimate of the costs to the borrower of such proceedings;
b) the importance of taking independent advice from his/her local Money Advice and Budgeting Service (MABS) or
an appropriate alternative; and
c) that irrespective of how the property is repossessed and disposed of, the borrower will remain liable for the
outstanding debt, including any accrued interest, charges, legal, selling and other related costs, if this is the case. Again they are dotting the I’s and crossing the t’s on their paperwork getting ready for the “sham” that is the “Summary Summons” procedure.
35. For MARP cases, the lender MUST NOT require the borrower to change from an existing tracker mortgage to another mortgage type, as part of any alternative arrangement offered to the borrower.
Almost every Bank is guilty of breaching this one, they have been doing all they can to get people off tracker mortgages.
39. If a lender is not willing to offer a borrower an alternative repayment arrangement, for example, where it is concluded that the mortgage is unsustainable and an alternative repayment arrangement is unlikely to be appropriate, the reasons must be given in writing to the borrower. In these circumstances, the lender must make the borrower aware of:
a) other options open to the borrower, including voluntary surrender, trading down or voluntary sale, and the
, WHAT THE BANKS CAN AND CAN’T DO.
MORTGAGES
b) the borrower’s right to make an appeal to the lender’s Appeals Board in relation to any of the following: (i) the decision of the ASU;
(ii) the lender’s treatment of the borrower’s case under the MARP process; or
(iii) the lender’s compliance with the requirements of the “Code of Conduct on Mortgage Arrears”,
including the procedure for making an appeal and the relevant time allowed to the borrower to consider submitting an appeal.
It’s like asking the Catholic Church to condemn paedophilia, they will condemn it all right, but they will also allow it!
40. If a borrower is not willing to enter into an alternative repayment arrangement offered by the lender, the
lender MUST INFORM the borrower in writing of the following:
a) other options open to the borrower, including voluntary surrender, trading down or voluntary sale, and the
implications of these for the borrower and the borrower’s mortgage loan account;
b) the borrower’s right to make an appeal to the lender’s Appeals Board in relation to any of the following:
(i) the decision of the ASU;
(ii) the lender’s treatment of the borrower’s case under the MARP process; or
(iii) the lender’s compliance with the requirements of the “Code of Conduct on Mortgage Arrears”, and
c) should the borrower decide not to make such an appeal, that the twelve month
moratorium on taking legal action, no longer applies to the borrower’s case.
Again, It’s like asking the Catholic Church to condemn paedophilia, they will condemn it all right, but they will also allow it!
REPOSSESSIONS
46. The lender must not apply to the courts to commence legal action for repossession of the borrower’s
primary residence, UNTIL EVERY REASONABLE EFFORT HAS BEEN MADE TO AGREE AN ALTERNATIVE ARRANGEMENT
with the borrower or his/her nominated representative.
This is Very Important for every man and woman out there to know. A case which Permanent TSB won at Circuit Court level for Possession of a HOME was overturned in the High Court over this point alone. The High Court Judge ruled that The PTSB did NOT make every reasonable effort to agree an alternative arrangement.
47. Where a borrower co-operates with the lender, the lender must wait at least twelve months from the date the borrower is classified as a MARP case (i.e. day 31), before applying to the courts to commence legal action for
repossession of a borrower’s primary residence.
The twelve-month period commences on day 31 but does not include:
a) any time period during which the borrower is complying with the terms of any alternative repayment
, WHAT THE BANKS CAN AND CAN’T DO.
MORTGAGES
b) any time period during which an appeal by the borrower is being processed by the lender’s Appeals Board; c) any time period during which the borrower can consider whether or not they wish to make an appeal on the
decision of the ASU;
d) any time period during which a complaint against the lender regarding any aspect of this Code, is being processed
by the Financial Services Ombudsman’s office; and
e) for pre-arrears cases, the time period between the first contact by the borrower in relation to a pre-arrears
situation and an alternative repayment arrangement being put in place.
Again making it look like they are helping the borrower when really they are buying time to find foreign investors to purchase large amounts of repossessed properties, as has happened in several other Countries.
48. Where a borrower is in mortgage arrears, a lender may commence legal action for repossession of the
property without the 12 month period applying, only in the following circumstances: a) where the borrower does not co-operate with the lender;
b) in the case of a fraud perpetrated on the lender by the borrower; or
c) in the case of breach of contract by the borrower other than the existence of arrears.
Very Important:- Generally “what’s good for the Goose, is also good for the Gander” So what would you think is the position in the case of a Fraud perpetrated on the Borrower by the Lender? Yes, You are equally entitled to take a case against the Bank and in the process, prevent the Bank from repossessing your Home until the outcome of your case is known.
49. A lender, or its legal advisors on its behalf, MUST NOTIFY the borrower in writing immediately before it applies to the Courts to commence legal action for the repossession of the primary residence.
Very Important:- This rule is breached in several ways, and bear in mind the “Code of Conduct on Mortgage Arrears” also states the Bank must notify you in writing when it has appointed a “third party” or Agent/Solicitor to act on its behalf. So start at the Start, if they have not informed you of their agent, why would you accept a summons or any other document from them?
50. In cases where legal action to obtain an Order for Possession has commenced, a lender MUST endeavour to maintain contact with the borrower or his/her nominated representative. If an alternative repayment arrangement is agreed between the parties before an Order for Possession is granted, the lender must put the legal proceedings ON HOLD, for the period during which the borrower adheres to the terms of the alternative repayment
arrangement.
So for the worrier’s among us, even when you are in Court, these Banks are doing deals, so if your case goes horribly wrong, (meaning you have put no effort in) You can still cut a deal, get out of there, regroup, gather the evidence you should have the first time, and Go Again with your Case against the Fraudulent Banksters.
DEMONSTRATING COMPLIANCE
, WHAT THE BANKS CAN AND CAN’T DO.
MORTGAGES
www.TheCommonLawSociety.com | 086 2411 888 | Inis Na bhFíodhbhadh | info@TheCommonLawSociety.com 52. A lender must be able to demonstrate to the Central Bank of Ireland that it is in compliance with the requirements of the “Code of Conduct on Mortgage Arrears”.
Remember this people, it is extremely important.
53. A lender must maintain full records of all the steps taken, and all of the considerations and assessments required by the “Code of Conduct on Mortgage Arrears”., and must produce all such records to the Central Bank of
Ireland upon request.
Remember this people, it is extremely important.
54. A lender MUST MAINTAIN RECORDS OF ALL COMMUNICATIONS with borrowers in mortgage arrears and in
pre-arrears. Such records must be readily accessible and capable of being reproduced in legible form and in a timely
manner. Such records may include contemporaneous notes of meetings and telephone calls.
56. All records required by, and demonstrating compliance with the “Code of Conduct on Mortgage Arrears”., must be retained by the lender for 6 years. In addition, all records relating to a borrower MUST BE retained for 6 years from the date the relationship with the borrower ends.
