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Buachaill
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 8400
Experience:  Barrister 17 years experience
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We have a mortgage in Ireland that we will not be able to pay,

Resolved Question:

We have a mortgage in Ireland that we will not be able to pay, even in the long term.

We are planning to become bankrupt in the UK to avoid the long painful new Irish insolvency process.

Our mortgage is secured.
We understand that bankruptcy only deals with unsecured debt.
The question is how do we make the mortgage unsecured.

We are considering selling the house ourselves if permitted by the bank. Alternatively following the correct process of handing the house bank to the bank.

If the bank wont agree to us selling the house how can we legally hand the house bank to the Bank so that the OR in the UK does not have to deal with it. We are concerned that still owning a house in Ireland could make establishing UK COMI more difficult.

Is COMI the only issue with still owning the house?
Submitted: 1 year ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 1 year ago.
1. It is not up to you to make the mortgage unsecured. Only the bank who holds the benefit of the security under the mortgage can decide to forego its security and make the loan unsecured. In reality, you have a snowball's chance in hell of this happening!! Secondly, you should really seek to sell the house in Ireland, as you own it. You do not need to seek the permission of the bank to sell it. In law, there is no such thing as handing your house, your property back to the bank. This is just not how it works. YOu need to realise that you will still remain liable for any shortfall owing on the mortgage even after the house is sold. So you are better off sell it yourself before you go bankrupt in England and then get the remaining amount owing written off under the English bankrupty as it will then be an unsecured debt.
2. Additionally, if you want to assert that your COMI is in the Uk, it is easier to do so if you do not own a house in Ireland. Having a house or residence is one fact at which the courts will look when determining your COMI for bankruptcy purposes.
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Customer: replied 1 year ago.

"you should really seek to sell the house in Ireland, as you own it."


 


I may own it but the banks holds the deeds. Does this mean they have a veto on the sale if they don't like the price I can get?


Mel

Expert:  Buachaill replied 1 year ago.
3. No, the bank have no veto on you selling the house. You can sell it at the price you can get for it. The sale however, must be an arm's length transaction untainted by shennanigans.
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Customer: replied 1 year ago.

How do I get the deeds that they are holding?


 


If I can sell the house without the deeds what value are they to the bank.

Expert:  Buachaill replied 1 year ago.
4. Since 2009, deeds are no longer evidence of title with respect to Registered Title. In essence, you do not need your deeds to sell your house. Your solicitor can get copies from the Registry of Deeds if it is unregistered land and convey the property. So the deeds are no longer an obstacle to selling the house. In essence, the deeds are no longer of value to the bank as they no longer are the actual title.
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Customer: replied 1 year ago.

I'm really have a problem understanding this.


 


 


I'm seeing newspaper reports that mortgagees have had to go to court to be allowed to sell their house.


 


 


http://www.irishtimes.com/newspaper/ireland/2012/0801/1224321233342.html


 


 


 


 

Expert:  Buachaill replied 1 year ago.
5. "A little knowledge is a dangerous thing!!!"
This case is based on the specific facts whereby an asset which was supposed to form part of the security, namely the site to be purchased by the father was never transferred into the mortgagee's name and so never formed part of the security as agreed.
Customer: replied 1 year ago.

Sorry Buachill,


Forgive my ignorance.


I appreciate your patience.


 


It just seems strange that I can go and sell the house complete the transaction and I assume the solicitor sends the money to the bank holding the mortgage.


 


 


 


How is the buyer protected if the mortgage is secured against the house? Does the buyers solicitor not check that their is no mortgage against the property? Isn't that what we pay solicitors to do when we buy a house?


 


 


 


 


 


 

Expert:  Buachaill replied 1 year ago.
6. This is a separate Question and if you want it answered, then Joe dearest, you will have to file it separately under a separate heading.
Buachaill, Lawyer
Satisfied Customers: 8400
Experience: Barrister 17 years experience
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