To: ISI members dealing with consumer mortgages secured on the family home.
Subject: Ensuring Fair Mortgage Terms for Your Clients
Your clients trust you to safeguard their financial future. As an insolvency practitioner, you play a vital role in advising homeowners on all available options when facing mortgage distress, including:
- Personal Insolvency Arrangements.
- Bankruptcy.
- Mortgage-to-Rent and other restructuring solutions.
However, one critical option is often overlooked: the obligation of Irish and EU courts to examine unfair terms in consumer mortgage contracts.
The European Court of Justice (ECJ) has consistently ruled that courts must assess unfair contract terms on their own motion, even if the consumer does not raise the issue. This requirement is based on the Unfair Contract Terms Directive (93/13/EEC), which Ireland implemented through the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. No. 27/1995). These regulations ensure that contractual terms are fair, transparent, and do not create an imbalance to the consumer’s detriment.
Additionally, the Land and Conveyancing Law Reform Act requires courts to apply proportionality when assessing mortgage enforcement cases, taking all relevant circumstances into account.
Given the gravity of mortgage distress, it is crucial to ensure that no unfair terms exist in your clients’ mortgage agreements.
How We Can Help
Barry Lyons Solicitors, in partnership with Quartech Services Limited (trading as Mis-Selling.ie), now offers a comprehensive mortgage review service to assess consumer mortgage contracts for unfair terms. To meet your professional obligations, you can register your clients’ mortgages for review at:
➡️ https://misselling.ie/register-today/
We offer three levels of Legal Protect cover, as detailed in the attached brochure. Given the urgency for clients in the PIA process, we recommend Gold-level membership. Alternatively, we can arrange a one-time fast-track mortgage review, including filing a formal complaint with the lender and, if necessary, escalating it to the Financial Services and Pensions Ombudsman (FSPO).
Next Steps
Once the mortgage is assessed as a mis-sale (i.e., unsuitable for the consumer), you must notify the creditor to halt all action against your client until the FSPO rules on the case. Alternatively, Barry Lyons Solicitors can handle this on your behalf.
The mis-sale case may also serve as a basis for the negotiation of a sustainable and affordable mortgage restructure. If your client receives compensation in any form, our terms and conditions apply. Fees are negotiable if the creditor agrees to an early settlement.
To discuss further, please email benhoey@quartech.ie to arrange a call.