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Just Received a Summons, Don't Panic, Read This.....

For over 100,000 homeowners in arrears and their partners, being served a summons to court by the bank is the moment they have been dreading most. So many homeowners have been sticking their heads in the sand, hoping and praying for a knight in shining armour that will save them from homelessness. The penny drops however when that knock comes to the door, often in the evening time, and the unsuspecting homeowner is handed the summons by a stranger. Its a moment when even the hardest of people, muscle-bound bruisers, turn to jelly, and the most positive people in life are overcome with shock, anxiety and depression. Physically, the heart-beat revs to palpitations, many have reported to us shortness of breathe, nausea and trembling. Court Hammer

These reactions are the release of pent up anxiety, often building over a number of years, as worst fears are realised. It isn't pent up emotions alone that bring about such reactions when handed a summons for a civil bill application by the bank. One of the main contributors is, believe it or not, ignorance, a lack of knowledge regarding what the summons is and what it means.

If you, like scores of thousands, have fallen into arrears on your mortgage, it is likely that you believe you will have no options other than to eventually hand in your keys or go to court to lose it sooner rather than later. This is in reality far from the case. If a home owner decides they wish to defend themselves having received a summons to court they can be guaranteed, with a little knowledge, to remain in their home for years to come. If you have recently been served with a summons to the Circuit Court, here's a few starting facts that will put your mind at ease and allow you a good night's sleep. The facts and court defence tactics outlined below do not present a silver bullet but rather will gain you significant amounts of time during which the Land League aims to build a national campaign to end evictions and achieve an across the board write-down on home mortgage debt.

1.  When you go to the Circuit Court for the first time you will be in front of the County Registrar. The Registrar is not a Judge. The Registrar is almost like a gate-keeper, and it is his/her job to make sure everything required for a case is present before sending the case to the "Judges List". If you do not present a defence the Registrar will make an Order for Possession of your home.

2.  On your first appearance the Court Registrar cannot make any decision, whether that be to send the case to the Judges list; grant the Bank its application for Possession; or even strike the case out with a right to re-apply. Because the Registrar can do nothing on the first sitting, we advise homeowners to say very little. An adjournment will be given automatically by the Registrar with a date to return. Currently adjournments are for between two months and four months in the Circuit Courts and extending all the time.

3. On the second appearance before the Registrar he/she has the authority (according to their own understanding of the constitution) to take an action, such as sending the case to the Judge's list etc. We advise at this stage that you attend the court with a short affidavit (a document stating facts you wish to tell the Judge in your defence). Do not present the affidavit immediately, but rather play for more time. Achieving adjournments throughout the court process is a core objective of our court strategy, keeping people in their home for as long as possible. A number of reasons to seek an adjournment at this second sitting include (a) I have applied for legal aide and await a decision, (b) I have recently sent a letter to the bank regarding negotiations and I await a response (do send such a letter one week before the second sitting), (c) I have made an appointment to obtain legal advice and ask for an adjournment. Similar reasons can be given to seek more time. Remember you are a lay-litigant and as such will receive more lee-way than a trained solicitor.

4. If the Registrar insists on you presenting a defence, then you may use the affidavit. The Affidavit can contain any form a defence, but make sure it states clearly that it is not your "full, final and perfected defence", but rather only serves to meet the requirement of having some sort of defence to send up to the judges list. Saying "I am trying my best" is not a defence. A defence must in some way refute the allegations of the bank. At this stage the affidavit should not be detailed. The affidavit may refer to the fact that the mortgage was securitised; that the interest rates claimed by the Plaintiff (that's the bank) are incorrect; that the mortgage was misrepresented to you, or a host of other Prima Facie (on the face of it) defences. Only use one or two and remember, its not the Registrar's job to decide on the merits of your defence, his/her job is simply to move it to the Judge's list.

5. If your requests for an adjournment at the second sitting have not been successful and your case has been moved to the Judges list, this does not mean you will be up in front of a Judge that day. Instead the case will be adjourned again and you will once more be before the registrar in two/three/four/ months time. At this stage the Registrar will ensure that all parties wish to continue and that everything is in place for a trial. Another adjournment will be given and a date set for the Judge's list. This sitting in the Registrar's court may provide more opportunities to delay and seek an adjournment.

6. If and when you finally appear before a Circuit Court Judge it is only for "mention", in other words the Judge will want to know, more months having passed, if both parties wish to proceed. This is where the real delaying can begin, where you can put the bank on the back foot by seeking discovery (the release of documentary evidence from the bank) and many other tactics. The Judge will set another date to return to mention the case again and find out if your reasons for delay have been satisfied and if so, a date can be given for hearing. If not, more adjournments can be requested.

We at the Land league hope that the above information has put your mind at ease in this holiday season. As you can see, before one word is spoken to a Judge or the matters discussed in Court, you can delay the process by up to two years. When the case actually begins further delay is easily achieved, and all the time we are building outside the courts a national movement for fair mortgage repayments. By knowing and using your rights your home can remain a sanctuary for you and your family for years to come, and hopefully for as long as you desire.

All along the way your local Land League can help you. Contact your local league for more details on workshops and clinics, or alternatively call 0894740811 to find out when the free workshops will be in you area.

Author - FM

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