A mother of two has been refused more time to appeal an order for possession of her Co Kildare home after claiming she had relied on misrepresentations by a man with no legal qualifications about how to deal with the possession proceedings and had paid him €14,000.
While it was “beyond concerning” that people without legal qualifications and with no right of audience before the courts were apparently holding themselves out as in a position to assist, for fees, those in mortgage arrears, Agnes Ryan chose to take that man’s advice, Mr Justice Mark Heslin said.
Start Mortgages Ltd sought the possession order over arrears on a €500,000 mortgage loan made in 2005 to Ms Ryan and her husband, Michael Ryan.
Start, which acquired the loan in 2015, said that as of July 2021, €453,870 was outstanding on the mortgage account, €2,847 in current monthly repayments were due, and the last payment on the account was €200 in August 2017.
After possession proceedings were initiated in 2016, Ms Ryan said in an affidavit that a man was identified to her as knowing something about mortgage arrears. She claimed the man told her, inter alia, not to make mortgage repayments after 2017, that he was liaising with a representative of Start on a “settlement” and would “take on” Start and prevent a possession order being issued.
When the possession order was made in her absence, the man told her he would file an appeal to the High Court but solicitors engaged by her in April 2022 had established he did not do so, she said
When Start’s civil bill for possession came before the Kildare county registrar in September 2021, it was adjourned to February 2022 on conditions that Ms Ryan, who appeared in person, pay €1,500 mortgage repayments monthly from September 2021 and that a divorce order be made available.
In February 2022, there was no appearance in court by Ms Ryan and an order for possession of her home at Carna, Suncroft, Co Kildare, was made with an eight-month stay on execution of that, to become permanent if €2,850 was paid monthly.
Ms Ryan said the man told her she did not need to attend court in February 2022, that a representative of Start had agreed to adjourn the case and counsel would “take care” of the matter. When the possession order was made in her absence, the man told her he would file an appeal to the High Court but solicitors engaged by her in April 2022 had established he did not do so, she said.
An appearance on behalf of Ms Ryan was entered in late June 2022 and her solicitors then issued a motion seeking an extension of time to appeal the order. When that was refused by the Circuit Court, she appealed to the High Court.
In a recently published judgment, Mr Justice Heslin concluded that Ms Ryan was not entitled to an extension of time to appeal and had not made out stateable grounds of appeal.
There was no allegation of duress or of Ms Ryan being mistaken about the man or his company having qualifications which they lacked, the judge said
There must be personal sympathy for someone who decided, for whatever reason, to retain and pay a person, despite knowing they were not a qualified lawyer but he had to emphasise that Ms Ryan made a “choice” to take advice off someone without a legal qualification, the judge said.
While taking nothing away from how troubling it was that someone would provide such a “service” for value, it was clear Ms Ryan chose not to comply with contractual obligations in respect of mortgage payments on foot of advice from someone whom she knew was not a qualified lawyer.
Her sworn statements could be distilled to “a range of very unfortunate choices” by her, all flowing from her decision to take that advice. There was no allegation of duress or of Ms Ryan being mistaken about the man or his company having qualifications which they lacked, he said.
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The appeal was not lodged in time because of her “conscious decision” to follow the advice of a non-lawyer in respect of legal proceedings and non-payment of mortgage obligations. Ms Ryan might “bitterly regret” that but it was not a mistake of the kind to allow an extension of time.
Ms Ryan, he further found, had advanced unstateable grounds of appeal that she was deprived of the opportunity to defend the case due to misrepresentations by the man; that the property was insufficiently identified in the civil bill for possession and the mortgage was void for uncertainty because of the wording concerning the property in that bill.
It was not a defence for Ms Ryan to say she was under a lot of stress in 2017 or to argue possession would adversely affect her sister with significant care needs whom she is caring for, he also said.
In the six years leading up to the grant of possession, the Ryans never suggested the mortgage was invalid, he said.
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