When a financial institution commences proceedings to possess a property, it must issue a court document called a ‘Civil Bill for Possession’ in the Circuit Court Office in the county where the property is located.
There will be general information on the front of the civil bill as to how the case is to proceed including the date, time and venue of the court where the case will be first listed for hearing. This date is called ‘the return date’ and it is essential that you note it carefully.
The financial institution must serve the civil bill on you in advance of the return date. This may be done by a Summons Server or it could be sent to you by registered post.
The civil bill is usually accompanied by an affidavit - a document sworn by the financial institution setting out the claim being made against you.
Appearance and defence
If you are not consenting to the making of an order for possession of your property, you should consider contacting the MABS or ISI staff in the court building to discuss your case (if you have not already done so).
If you decide to contest the proceedings, you must complete and file a document called an ‘Appearance’ within 10 days of receiving the civil bill.
You should also file (lodge in the Circuit Court office) an affidavit replying to the claims the financial institution is making against you at least four days before your court date.
You should bring, or send, three copies of the completed appearance to the court office where the proceedings were issued. One copy will be placed on the court file, while the other two will be returned to you.
One of these copies must be served on the solicitors representing the financial institution which is taking the proceedings and you should retain the other copy.
There is no charge for filing the appearance form.
If you believe that there are technical errors or serious issues with the proceedings and you wish to defend them, you are required to prepare a further document called a ‘Defence’.
This sets out the grounds under which the court should not make the order in favour of the financial institution. This must be served on the solicitors for the financial institution within 10 days of serving them with the appearance.
Situations where a defence arises are not common so it is very important that you seek legal advice if you intend to issue a defence.
Court Decision / Order
Based on the information presented, the judge/county registrar may:
- grant the order for possession
- strike out or dismiss the case, or
- adjourn the case to allow time for both you and your financial institution to reach an agreement.
The court may grant an order for possession with or without a ‘stay’.
A ‘stay’ delays orders from coming into effect for a time. Where the court grants a stay, for example for six months, the financial institution cannot seek to take possession or sell the property for at least six months. If no stay is granted, the financial institution can seek to take possession once the order for possession has been drawn up.
When the judge announces his/her decision, listen carefully to the reasons given and write down the orders made.
It is important that you understand what the county registrar / judge has decided in relation to your case before you leave the courtroom. If you do not understand, do not be afraid to ask. You can ask for the orders to be repeated if you missed any.
Once orders are made, your case is finished and you are free to leave. The court registrar/court clerk will draw up the court order and send it out to the solicitor that acts for the financial institution.
Appeals of decisions of the county registrar can be made to a Circuit Court judge.
Appeals of a decision of a Circuit Court judge can be made to the High Court.
Your local court office can provide information on the procedure but usually, it involves the issue of a ‘notice of motion’ which is supported with an ‘affidavit’.