The High Court has lifted a stay that had prevented the appointment of a receiver over Denis English’s mortgaged property at Knocklofty, County Tipperary, after finding that Promontoria (Aran) Limited had established its entitlement to appoint the receiver.
Ms Justice Murphy ruled on 17 May 2017 that the company had shown, on the balance of probabilities, that it acquired Ulster Bank Ireland Limited’s interests in Mr English’s loans, facilities and mortgage. The court said the documents provided established the chain of title through a 2014 mortgage sale, a 2015 novation and subsequent transfer and conveyance documents.
The application followed an earlier interlocutory ruling in November 2016. At that stage, the court had stayed the receivership because the documents then provided did not clearly establish how Promontoria (Aran) Limited acquired the mortgage. The court had refused to let the company introduce additional evidence into that concluded interlocutory hearing, but later allowed it to provide further documents to Mr English’s lawyers. The company could then apply to lift the stay if its entitlement remained disputed.
Promontoria (Aran) Limited brought the present motion in January 2017. Mr English argued that the additional documents still did not prove the transfer, raising concerns about execution of deeds, redactions and the transfer of underlying loan obligations. He also challenged notice of assignment and the authority of the person who appointed the receiver. He withdrew his stamp-duty objection after the company produced statutory authority on the issue. He did not file a replying affidavit to the company’s evidence.
The court relied on uncontroverted affidavit evidence from two company directors and the deeds exhibited with their affidavits. It said the documents were valid on their face and showed the mortgage sale to Promontoria Holding 128 B.V., novation to Promontoria (Aran) Limited, and subsequent transfer and conveyance of Mr English’s mortgage. The judge said the redactions did not prevent the chain of title from being established for the purpose of this application.
The ruling determined the company’s entitlement to rely on the mortgage to appoint a receiver and lifted the existing stay. It did not determine the underlying plenary action, which sought declaratory and injunctive relief, or resolve any possible disputes between parties to the loan-sale documents.