The High Court has allowed Start Mortgages Designated Activity Company’s appeal in a possession case involving a family home in Termon, County Donegal, and ordered possession under section 62(7) of the Registration of Title Act 1964. The order is stayed for six months to allow Thomas and Eileen Ryan time to arrange alternative accommodation.
Mr Justice Woulfe delivered judgment on 18 November 2021. The appeal was a full rehearing, based on evidence given and received in the Circuit Court. The High Court overturned the Circuit Court’s October 2020 order that the lender’s possession claim proceed to a plenary hearing and that the case be transferred to the High Court.
The loan facility of €410,000 was advanced in 2007 and secured by a charge over the respondents’ family home. The lender’s evidence was that the borrowers later defaulted. The judge said the evidence established that the principal money had become due; the respondents had not really disputed that point.
The first respondent raised 13 grounds which, he argued, should defeat the claim or require a plenary hearing. These included claims that the lender did not own the mortgage because it had been securitised, that a prior judgment mortgage meant the lender was pursuing the debt twice, and that the affidavits were not admissible because their authors worked for the lender’s parent company.
The judge found that the lender remained the registered owner of the charge and that the folio was sufficient evidence of its entitlement to seek possession. He accepted that the mortgage had been securitised, but held that this did not affect the lender’s legal title or the respondents’ repayment obligations under the mortgage terms. He also concluded that the remaining grounds did not establish a credible defence. The court was deciding entitlement to possession, not making an order for payment of a specified debt amount.
The judgment says the lender is provisionally entitled to its costs of the appeal. Either party may file written submissions seeking a different costs order within two weeks. The judge refused a separate motion by the first respondent to strike out the proceedings, finding that its grounds repeated arguments rejected in the appeal. He proposed making no costs order on that motion, subject to written submissions within the same period.