The High Court has refused to strike out Margaret Hosey’s claim against her former solicitor over the remortgaging of her home, finding she had at least a stateable cause of action. The court directed Ulster Bank Ireland Limited and Brendan Weldon to file a defence to her amended claim within three weeks.
In an ex tempore judgment delivered on 7 June 2016, Ms Justice Murphy said the claim’s nature and extent would become apparent only after discovery. The ruling did not decide whether the alleged wrongdoing occurred or determine the merits of the claim. The judge said she was willing to case manage the case if the parties wished, and that no further application could seriously be considered before full discovery.
Hosey and her then husband, Patrick Hosey, jointly owned two County Carlow properties: 47 Brooklawns, where she had lived since 1998, and another property known as Rutland. In 2002, they remortgaged Brooklawns with First Active, drawing down €152,000. The judge said the mortgage charge had not been registered by 2004.
The couple later sought a Bank of Ireland facility to refinance the properties. The court noted the eventual advance was about €207,000, roughly €28,000 short of the amount needed to discharge the First Active mortgages on both. Brooklawns’ First Active mortgage was redeemed in May 2004.
Weldon maintained that the redemption was an error. Hosey’s position, as described by the judge, was that it followed an agreement between her and her husband that she would have Brooklawns free of debt if they separated. The judge said she had seen no evidence about what happened to the Rutland property between 2004 and 2008.
In early 2008, Weldon wrote to the bank, purportedly for both spouses, seeking to reverse what he described as the 2004 error, reactivate the Brooklawns mortgage and discharge the Rutland mortgage. The judgment records that this was done without notice to or authority from Hosey, who was estranged from her husband. The judge said the reversal made the home where Hosey lived more immediately vulnerable to repossession.
A mortgage deed dated 8 March 2008 was produced. Weldon accepted the date was wrong but, the judge said, offered no explanation for how it had been altered. The court called that a serious concern. It also noted there was no evidence the proposal had been put to Hosey or that her instructions had been sought.
The judge concluded the claim should not be struck out and said the defendants should now file a defence. Hosey’s separate motion for judgment in default of defence was before the court but did not take up any court time.