Formula 1 ace Jackie Stewart famously said, "When the flag drops the bullshit stops."
Vulture funds have spent the last 6/12 months ostensibly negotiating with borrowers. They used the time fruitfully to get a full picture of borrowers' financial positions. Sharpening their knives so to speak.
Now it seems that the flag has dropped. We've seen a marked increase in the number enforcement actions by vulture funds against borrowers in the last few months. There are more active receivers in Dublin than in the whole of the NFL.
But there's a problem. It seems that some receivers might have been appointed when they shouldn't have been. Ms Justice Marie Baker recently ruled that where the assignment of the loan and security from the original lending bank wasn't registered (as required by statute) then the assignee has not received any interest in the security.
Crucially, the practical effect is that the appointment of a receiver on foot of an invalid security is probably invalid! Ouch! So it seems invalidly appointed receivers are going to have to stay clear until the security has been properly registered. However, long that might take.
Now we need to exercise a degree of caution here: Ms Justice Baker's decision was made in the course of an interlocutory injunction and so it's not finally determinative. And there is at least some persuasive legal argument to suggest that the statutory requirement to register the assignment can't interfere with the contractual right in a security document to appoint a receiver.
But, it's going to be a white knuckle sleigh ride for the vulture fund employees trying to get their cases closed in time for their Christmas bonus.
'He sprang to his sleigh, to his team gave a whistle, And away they all flew like the down of a thistle. But I heard him exclaim, ere he drove out of sight— “Happy Christmas to all, and to all a good night!”'
Those grounds were: That the implied term of the original loan was that it would not be called in for immediate full repayment unless there was a default in repayments; that the EU directive on Unfair Terms in Consumer Contracts 1995 had allegedly been breached; and that registered ownership of the loan had allegedly not been changed with the land registry from the original name of Anglo Irish Bank to Gulland.