The High Court has dismissed Brendan and Maureen Flannery’s appeal against an order for possession of their family home in Belmullet, County Mayo, and affirmed the Circuit Court order.
In an ex tempore judgment delivered on 28 January 2022, Ms Justice Siobhán Phelan found that the first named plaintiff had established default when the mortgage security was transferred and continuing default afterwards. The court held that the plaintiff was entitled to realise its security and that possession should be ordered. It said it would consider applications for consequential orders separately.
The case came to the High Court as a de novo appeal from a Circuit Court possession order made on 25 April 2017, which had been stayed for 12 months. The plaintiffs sought possession after missed payments under a housing loan. The judgment records that the defendants did not deny default, although they disputed the amount of arrears in later material. That amount was not pursued at the appeal hearing.
The defendants argued that the loan was unenforceable because it lacked the notice required by section 129 of the Consumer Credit Act 1995. The parties agreed that the loan agreement did not contain the required front-page particulars. The judge ruled that this failure did not make the agreement unenforceable: the Act did not specify that consequence, and the court found no evidence the defendants had misunderstood or been misled about their obligations.
The defendants also challenged the addition of Pepper Finance Corporation (Ireland) DAC as a co-plaintiff and questioned the first plaintiff’s entitlement to seek possession after transfers of the loan and security. The court rejected the objections, finding no bar to maintaining the proceedings. It distinguished the evidence issue from a case relied on by the defendants, and found that the first plaintiff’s director had appropriate means of knowledge from its records. The court said the evidence, including documents exhibited by the defendants, established arrears from 2011 and default at the time of transfer.
The court also rejected a contention that the Central Bank’s Code of Conduct on Mortgage Arrears had been breached, noting that the plaintiff was not a bank and that no specific breach was established. It found no unfair term in the loan agreement on its own motion review. The judgment records that some other arguments raised during the proceedings were not pursued at the appeal hearing.