A cautionary tale for lay litigants in repossession cases seeking assistance from “shadowy advisers”
By Hilda Mannix
13 April, 2017
In the recent High Court decision of KBC Bank Ireland Limited –v- Mark Flynn and Mairead Flynn (Nee Gorman)  IEHC 79, Mr. Justice Seamus Noonan strongly criticised unregulated and uninsured “shadowy advisers” who are giving “so called legal advice” to lay litigants seeking to challenge repossession orders before his Court.
The case involved an appeal of an Order for Possession made against the family home of Mark and Mairead Flynn in favour of KBC Bank Ireland Limited (“KBC”) by His Honour Judge O’Hagan in Cavan Circuit Court. At the hearing of the appeal, Mr. Flynn did not submit a replying affidavit or present any evidence to suggest that the Defendants had a bona fide defence, but instead issued a notice of motion seeking a number of orders in the form of declaratory relief relating to the jurisdiction of the Circuit Court to hear the proceedings, a request for a case stated to the Court of Appeal and a claim for judicial review of the Circuit Court Order. The notice of motion also contained unsubstantiated allegations that the Circuit Court was misled and that evidence was withheld. In addition, Mr. Flynn asserted, on advice that he was apparently given by an entity called The People’s Mortgage Protection Vehicle (“the PMPV”), that he was entitled pursuant to section 93 of the Land and Conveyancing Law Reform Act 2009 to have the mortgage the subject of the proceedings assigned to the PMPV, which he claimed would in turn defeat KBC’s claim. Section 93 provides that a “mortgagor who is entitled to redeem may, subject to compliance with the terms on which the mortgagor would be entitled to require a discharge, require the mortgagee, instead of discharging the mortgage, to assign the mortgage debt and transfer the mortgage to any third person, as the mortgagor directs, and on the mortgagor so directing, the mortgagee is bound to assign and transfer accordingly”. Moreover, Mr. Flynn advised the Court that he was making payments under the mortgage to the PMPV rather than KBC.
In dismissing the appeal and affirming the Order of the Circuit Court, Mr. Justice Noonan held that the assertion that the Flynns could defeat KBC’s claim by assigning their interest in the mortgage and/or the property to a third party was “utterly misguided and spurious” and commented that it was a “worrying development” that the Flynns (and possibly others) were making their mortgage payments to the PMPV rather than KBC. Significantly, Mr. Justice Noonan commented that it was of considerable concern that lay litigants like Mr. Flynn are being “duped by anonymous parties” into paying money for flawed legal advice and, in reliance on that advice, are bringing appeals from the Circuit Court or seeking judicial review on foot of “ineptly drafted” papers, which are entirely misconceived and inevitably expose those individuals to much higher legal costs than necessary. The Court further commented that it is often the case that these individuals would be much better advised if they were to engage with their creditors, “either directly or through the medium of properly qualified advisers”.
While the decision appears in practice to have already been the view of Circuit Court Judges and County Registrars throughout the country, it is nonetheless a welcome one for practitioners and financial institutions alike, who have no doubt become familiar with misconceived motions brought by unrepresented litigants which have, more often than not, the stamp of organisations which purport to assist them in challenging repossession proceedings. Together with the decision of Mr. Justice Humphreys in Nowak & Anor v Residential Tenancies Board  IEHC 471 (which condemned the use of “fanciful descriptions” of deponents in affidavits) the decision is a warning for such organisations and indeed, the lay litigants who seek their assistance, that the Court will not entertain frivolous and vexatious claims which appear to trivialise court procedure and the seriousness of the situation in which lay litigants find themselves.