The High Court has ordered Thomas Darcy and Antoinette Darcy to give Allied Irish Banks plc possession of four mortgaged properties, after rejecting their arguments against the bank’s application.
Mr Justice David Keane delivered the ruling on 20 May 2015. The bank brought the application by special summons in January 2014, seeking possession under the Registration of Title Act 1964 and the Land and Conveyancing Law Reform Act 2013.
The bank relied on evidence that the defendants had defaulted on loans for acquiring, refinancing or developing properties. It said five loan facilities had a total value of €15,808,303. After demanding repayment, it obtained a default judgment in February 2011 for €17,422,790.53. A later demand, dated November 2013, sought €21,154,079.30, including interest. The judgment records that the defendants did not meet that demand.
The proceedings followed the Supreme Court’s decision in November 2013 to set aside an earlier possession order and remit the first proceedings for a plenary hearing. The bank then started a separate case. A procedural challenge led to the special summons being struck out, but Mr Justice Gilligan reinstated it in October 2014. The bank undertook not to enforce any possession order while the defendants’ appeal from that decision remained unresolved.
The first defendant argued, among other things, that the loans might have been securitised and the bank therefore could not enforce them. The judge found no evidence that the loans had been transferred and held that the possibility of securitisation did not defeat the claim. He also ruled that the defendants’ liability on the loans had already been determined in the earlier proceedings.
The second defendant argued that the mortgage over Woodview was invalid because she had not consented under the Family Home Protection Act 1976. The judge found that she and her husband jointly owned the properties and had jointly engaged in the transactions, so the Act did not prevent possession. He also rejected her argument that the Central Bank’s Mortgage Arrears Resolution Process applied. Woodview had been damaged by fire in 2009 and was uninhabitable; the defendants were living at Myra Manor.
The judge found that the bank held registered charges over the properties, that its power of sale had arisen, and that its demand for possession had not been met. He accepted that vacant possession would make a sale more satisfactory, taking judicial notice of that proposition despite the absence of supporting affidavit evidence. He also found the bank had met the procedural requirement concerning notice to people in occupation or receiving rents and profits.
The court granted the possession order for all four properties. The judgment does not specify an enforcement date; the bank’s undertaking deferred enforcement pending the appeal.