The High Court has ruled that Start Mortgages DAC is entitled to possession of a property in Rosses Point, Co Sligo, rejecting Conor and Mary Ward’s challenge to the lender’s claim.
In a judgment delivered on 14 September 2023, Mr Justice Heslin said the Wards had not established a credible defence to the possession application. The court found that Start Mortgages was the registered owner of the charge over the property and that its right to seek possession had arisen and was exercisable.
The property, known as The Bard, is held under Folio 843F. The loan was advanced in 2006 for a 10-year term, with the principal due at the end of that term. The Wards acknowledged that the loan had not been repaid when due and that demands for payment were made in March 2018. The judgment records that the amount owing was not disputed.
The Wards argued that legislation regulating credit servicing firms did not authorise Start Mortgages to carry out mortgage redemption, making the 2015 assignment of the loan and charge void. They said this prevented them from exercising their right to redeem the mortgage. Justice Heslin rejected that argument, finding that redemption is the borrower’s right and does not need to be granted by the lender. He also found that the legislation did not make activities outside the defined regulated business unlawful or void.
The High Court proceedings followed a Circuit Court order made in October 2021 granting possession to the lender, with execution stayed for six months. The Wards appealed. Justice Heslin said they had not used the stay to repay the loan and noted that they had not made a payment since March 2020. Although they said they had funds to redeem, the court found that their position was conditional on Start Mortgages first accepting their legal argument.
The judgment concludes that Start Mortgages is entitled to possession under its civil bill. On costs, Justice Heslin gave a preliminary, strongly held view that the lender should recover its costs, but directed the parties to agree a draft order by 16 October 2023 or provide short submissions on any disagreement. The judgment does not itself record the terms of a final order on costs.