Thomas Byrne (Fianna Fail) | Oireachtas source

I move amendment No. 1:

In page 6, between lines 7 and 8, to insert the following:
“Power of Court to determine the rejection of a proposal for a Personal Insolvency Arrangement as unreasonable
4. (1) Where in an application by a mortgagee for repossession of a property to which section 2(1) applies, a proposal for a Personal Insolvency Arrangement made pursuant to section 98(1)(c) of the Act of 2012 which included the debt of the property had been rejected by reason, in whole or in part, of a vote by the mortgagee at a creditors meeting held pursuant to section 109 of the Act of 2012, the Court shall, with the consent of the mortgagor, direct the Personal Insolvency Practitioner concerned to provide to it a report in writing which shall include the content of the proposal, and any amendments made thereto, for a Personal Insolvency Arrangement.
(2) The Personal Insolvency Practitioner shall cooperate in providing the written report to the Court within a period prescribed by the Court to be not more than 2 months. In making the report to the Court under this section the Personal Insolvency Practitioner shall provide an opinion as to whether the rejection by the mortgagee of the proposal for a Personal Insolvency Arrangement was reasonable.
(3) In providing an opinion pursuant to subsection (2) the Personal Insolvency Practitioner shall have regard to whether the proposal of a Personal Insolvency Arrangement constituted an offer to repay an amount, whether on a restructured basis or not, equal to the current value of the property and any other matter considered relevant by the Personal Insolvency Practitioner having regard to his or her experience in the proposing of Personal Insolvency Arrangements.
(4) The Court on receipt of the written report from the Personal Insolvency Practitioner shall cause to be made available to the mortgagor and to the mortgagee a copy of the report and shall provide a reasonable period of time for any response in writing to be provided by either party such period not to exceed one month.
(5) On receipt of any response provided by the parties the Court shall proceed to fix a date of a hearing for the purposes of determination by the Court of the reasonableness or unreasonableness of the rejection by the mortgagee of the mortgagor's proposal for a Personal Insolvency Arrangement.
(6) Any creditor being the subject of the proposal for the Personal Insolvency Arrangement shall be notified in advance of the hearing and shall, on request, be provided with a copy of the report of the Personal Insolvency Practitioner and any responses provided by the mortgagee or mortgagor and shall be entitled to make submissions at the hearing under this section.
(7) In determining whether or not the rejection of the proposal for a Personal Insolvency Arrangement was reasonable or unreasonable the Court may have regard to the following matters:(a) the report of the Personal Insolvency Practitioner and any responses received by the mortgagee or mortgagor;
(b) the submissions of any creditor;
(c) whether the proposal of the Personal Insolvency Arrangement constituted an offer to repay an amount, whether on a restructured basis or not, equal to the current
value of the mortgaged property;
(d) the housing needs of the mortgagor and his or her dependants;
(e) the conduct of both parties including the conduct of the mortgagee in underwriting the loan/s secured by the mortgage;
(f) any other circumstances or matters that the Court considers relevant.(8) If the Court determines that the mortgagee's rejection of the proposal for a Personal Insolvency Arrangement was unreasonable the Court may do any one or more of the
following:(a) adjourn the application for repossession for such time as is necessary to enable the mortgagor make another proposal for a Personal Insolvency Arrangement and
for a vote on such proposal to be taken pursuant to section 109 of the Act of 2012;
(b) stay the coming into effect of the Order of repossession for a period not exceeding 24 months;
(c) without prejudice to the Courts discretion as to any order for costs it might make order that the mortgagee pay the costs or part costs of and incidental to the following, such costs to include the reasonable costs of the Personal Insolvency Practitioner:

(i) the making of the proposal for a Personal Insolvency Arrangement;
(ii) the application for the Order of repossession;
(iii) the hearing under this section.

(9) A copy of the Personal Insolvency Practitioner's report together with any responses received and any Order made under this section shall be provided to the Insolvency
Service of Ireland.”.

It is shameful that we are here, giving the banks this power. The officials can have any opinion they want; their houses will not be repossessed. Thousands of people are in a position where the bank cannot effectively repossess their property today, but can do so tomorrow. The door is literally opening and this is completely unfair.

The amendment we are proposing tries to go some way towards remedying a defect in the law that existed before the Dunne judgment, which was well recognised in conveyancing textbooks but which has been ignored by the Government. It will provide some element of discretion to the court in respect of a repossession order. The reality is that when an application for repossession comes before the court, then before the Dunne judgment the court had no option but to grant the repossession. It had no discretion whatsoever and this was recognised as a major problem with the law. This Bill does not provide any discretion to the court, other than to look for a personal insolvency arrangement.

The purpose of our amendment is to enhance the discretion of the court and to give more of the benefit of the doubt to the homeowner and more delay for the homeowner. Delaying repossessions is a very important part of the strategy while hundreds of thousands of people remain out of work. When there is full employment and people are able to pay their mortgages, we can have a repossession situation, but until then we have to stop the banks from doing this. We are giving this Bill to the banks and there is absolutely nothing in return. If there was something in return, perhaps we could support it.

Billions have been given over to the banks by both Governments on behalf of the Irish people. Repossessions were halted following the Dunne judgment and through the code of conduct on mortgage arrears during the lifetime of the last Government. What has this Government done for mortgage holders? It has created the personal insolvency legislation in so far as it goes, but it has cut back on the code of conduct put in by the last Government and it has published this Bill. It is an absolute outrage, and this limited amendment is essential to give some discretion to the court and to give some relief to the homeowner to take away some of the power from the banks that the Government seems determined to give them.