The High Court has upheld a possession order for a Wicklow family home after rejecting the borrowers’ arguments that the lender was barred from pursuing possession and that the mortgage terms or the impact on their family made the order unfair. The judge granted a further four-month stay to allow them to find alternative accommodation.
Mr Justice McDermott delivered the judgment on 28 March 2019 in a de novo appeal by Helena Davis against a Circuit Court order made on 13 May 2015. The order granted Permanent TSB possession of the property. The judge also considered the appeal brought out of time and Ms Davis’s request to rely on later affidavits. He was not satisfied that the new material met the test for admission, though he considered the consumer-protection issue raised in one affidavit.
The loan was for €400,000, repayable over 35 years, and secured on the home. The judgment records that repayments had been in default since August 2012 and that arrears stood at €80,911.03 in April 2014. Permanent TSB said €465,985.77 was then due and owing. The lender’s evidence was that it had followed the mortgage-arrears process and sought financial information from the borrowers; it classified them as non-cooperating after they did not provide a requested statement. The couple acknowledged their financial difficulties and default, describing business failures, unemployment and illness.
The couple argued that a 2009 letter from the bank’s chief executive, saying it had no plans to seek repossession and would work with them, prevented later proceedings. The judge found the letter was not a binding undertaking and noted that the lender’s possession demands came in 2014, after the arrears process. He also rejected arguments concerning securitisation of the loan, the borrowers’ consent to the mortgage, tax relief, life insurance premiums and alleged procedural defects.
The judge examined whether the loan and mortgage terms were unfair under EU consumer-protection rules. He found the relevant documents had been provided and that the core terms, including repayment, security over the family home and the lender’s ability to seek possession after default, were clear and not unfair. He was also not satisfied that possession would be disproportionate, having considered the couple’s financial and personal circumstances, the lender’s engagement and the prospects of repayment.
The High Court therefore granted the possession relief sought, while allowing a further four-month stay for the couple to find other accommodation. The judgment addresses the appeal from the Circuit Court order; it does not describe an immediate eviction.