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Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10539
Experience:  Barrister 17 years experience
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I obtained court orders against developer for breach of

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I obtained court orders against developer for breach of contract. 5 apartments and 33,000.00 per apartment in loss of rent/
Unfortunately the bank repossessed the development and NAMA purchased the bad debts . accpring to the NAMA Act We Michael and Nuala Duddy have decided to forge ahead with the five apartments in accordance with the court order dated 11th March 2008 in compliance with the court order and in compliance with the National Asset Management Act 2009 Section 135 (2) as stated below:-(2) Where the Court determines ownership of a bank asset in favour of a third party and as a result NAMA or a NAMA group entity is obliged to transfer the bank asset to the third party or pay damages in lieu, the participating institution shall indemnify NAMA or the NAMA group entity against that liability and all losses suffered by it.We state the following must be complied with:-1. COURT ORDERS ( x Five ) dated 11th May 2008 by order of Judge John O Hagan to the Plaintiffs Michael and Nuala Duddy:-
Apartment 45 ( now stated in the new contracts for sale as Apartment No 1 ( ground floor) of block 4 Student Village Apartments, Port Road, Ballyraine, Letterkenny situated on the right as you enter the complex
Vacant Possession of the said property as to paragraph 1
To recover the sums
(i) Tax Relief €15,000.00
(ii) Rental Income 18,000.00
(iii) Total Decree €33,000.00 together with costs and expenses of the proceedings to be taxed in default of agreement2. Five court orders as to ***** 45 known as No 1 as stated above), No 46,(known as No 2) No 47 ( known as No.3) No 48 (known as No 4) No.49( known as No.5)The response from Nama solicitors is as follows:- Section 135 of Nama asset management act 2009 is for participating institutions. /. Specifically Section 135 (20 provides iof there is a determination from the court resulting in an obligation by NAMA to transfer a bank asset to a third party or to pay damages to a third party in lieu thereof, the participating institution is obliged to indemnify NAMA . Accordingly section 135 (2) does not have any application in this matter.My question is that the contracts for sale are asking for both of us to indemnify NAMA, ( however NAMA says that this does not apply see above) however, i am making the assumption that the participating institution is the Bank from which NAMA purchased the bad debt. Why then would I have to sign the contracts for sale agreeing to indemnifying NAMA, and does NAMA have to uphold the whole of the court order/

1. Dear *****, you would be a fool to sign any contract for sale which obliges you to indemnity NAMA. So, you should instead, go back into court and ask Judge O'Hagan to instead give directions on the issue. Otherwise, the effect of the order previously made by Judge O'Hagan is set at nought. So, you should either strike out the clause which obliges you to indemnity NAMA if you wish to sign the contract for sale or else, if this turns out not to be acceptable, you should go back into Judge O'Hagan and seek directions on the issue. Essentially, if you agree to indemnity NAMA then you got nothing of value when you go your court order. An indemnity is like a guarantee. So, here, there is no reason why you, as purchaser, should be indemnifying NAMA.

2. So, you should not sign any contract which includes a term which indemnifies NAMA. You can strike that term from the contract if you wish and then sign it, initialling the clause which you struck out. If this is acceptable, as NAMA have told you, then they should have no difficulty in accepting it. If not, then you will have to go back into court.

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