The High Court has refused Ulster Bank Ireland DAC’s application to dismiss claims brought against it by Eoin Fannon over a disputed mortgage repayment arrangement and the appointment of a receiver over a Dublin docklands apartment.
In a judgment delivered on 28 April 2021, Mr Justice Keane held that Ulster Bank had not shown that Mr Fannon’s claims were bound to fail. The ruling was on a preliminary application; it did not determine whether the alleged 2014 repayment agreement existed or resolve the underlying claims.
Mr Fannon and his wife borrowed €501,500 from First Active plc in 2007 to buy the apartment. The loan was transferred to Ulster Bank in 2009 and assigned to Promontoria (Oyster) DAC in December 2016. Promontoria was registered as owner of the mortgage charge in March 2017.
Mr Fannon alleges that Ulster Bank offered him a separate repayment agreement in November 2014, under which he would pay €958 a month for three years while the original principal and interest repayments were suspended. He says he accepted and complied with it, but Ulster Bank failed to tell Promontoria about the agreement. He claims that this failure led to Promontoria appointing Tom O’Brien as receiver in February 2018. He also alleges that Ulster Bank and the other defendants made defamatory statements to the apartment’s tenant and committed trespass. These remain allegations.
Ulster Bank denied entering a separate repayment agreement and argued that the claims against it had no reasonable cause of action and were bound to fail. It relied on the law governing assigned debts and a Court of Appeal decision, arguing that claims connected with enforcement should be pursued against the assignee. It also contended that correspondence showed no separate agreement existed.
The judge found that Mr Fannon’s claims against Ulster Bank concerned alleged acts or omissions before Promontoria became involved and did not seek to restrain enforcement of the loan. He considered that the legal question about the effect of an assignment on prior agreements was not sufficiently straightforward to decide safely on this application. He also said the correspondence did not amount to incontrovertible evidence that no repayment agreement existed, given Mr Fannon’s sworn evidence and reference to supporting evidence from his accountant.
The court also declined to strike out the defamation claim as potentially time-barred. The alleged publication dates were pleaded only as “diverse dates”; the judge said the claim could not be struck out based on what seemed probable. The motion was refused in full. The parties were directed to seek agreement on any issues arising, including costs, and to file short written submissions within 14 days if they could not agree.